STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBERT ALLAN WEINBERG, )

)

Petitioner, )

vs. ) CASE NO. 90-3007BID

)

DEPARTMENT OF CORRECTIONS, )

)

Respondent, )

and )

)

CHARLES E. WILLIAMS, )

)

Intervenor. )

)

RECOMMENDED ORDER

Following the provision of notice a hearing was conducted on June 27, 1990, in Daytona Beach, Florida. Authority for the

conduct of the hearing is set forth in Section 120.57(1), Florida Statutes. Charles C. Adams was the Hearing Officer.

APPEARANCES

For Petitioner: Glenn D. Storch Esquire

STORCH & HANSEN P.A.

Suite 300

1620 South Clyde Morris Boulevard Daytona Beach, Florida 32119

For Respondent: Perri M. King, Esquire

Department of Corrections 1311 Winewood Boulevard

Tallahassee, Florida 32399-2500

For Intervenor: Lawrence W. Borns, Esquire

312 North Halifax Avenue Daytona Beach, Florida 32118

STATEMENT OF ISSUES

The issues presented here concern the questions of

whether Intervenor's response to Request for Proposal (RFP) number 700:0561, for the lease of office space was responsive to the RFP; whether the Respondent in rating the responses to the proposal made a reasonable application of the rating formula and which prospective lessor should be awarded the contract, if anyone.

PRELIMINARY STATEMENT

This Recommended Order is being entered in consideration of the testimony given at the final hearing and the exhibits

presented. The parties have offered proposed recommended orders and they have been examined in preparing the Recommended Order. The proposed fact finding is commented on in an appendix to the Recommended Order.

A transcript of the hearing was filed with the Division of Administrative Hearings on July 23, 1990. Ordinarily, the

parties would have had ten days from that date to file proposed recommended orders. A motion was made requesting an extension of that time. The new date sought was August 7, 1990. An order was entered which granted an extension of time. Proposed recommended orders were filed on August 7, 1990. Under the circumstances, the parties waived the right to the entry of a recommended order within

30 days of receipt of transcript. See Rule 22I-6.031, Florida Administrative Code.

FINDINGS OF FACT

1. Respondent through RFP number 700:0561, solicited responses for the lease of office space for its employees working in the Daytona Beach, Florida, area. A copy of that solicitation may be found as Joint Exhibit 1 admitted into evidence. Respondent received timely responses from the Petitioner and Intervenor.

   Those responses were in keeping with the requirement to submit sealed bids on or before 11:00 a.m. April 19, 1990.

   
   

2. Prior to the deadline for submitting bids a

   preproposal conference was conducted on April 5, 1990. A copy of the minutes of that conference may be found as Petitioner's exhibit

   1 admitted into evidence. Among the highlights in this conference, as commented on in the minutes, was a discussion concerning the requirement for the provision of restrooms. The specific requirement for restrooms is set forth in the RFP at page 5 under

   B.6. and identifies the fact that the restrooms must meet standards for special facilities for physically disabled and calls for public restrooms for men and women and staff restrooms for men and women, describing the conveniences for each of those facilities. No indication is made concerning the placement of those restrooms. On the other hand, in the course of a suggested floor plan, Attachment H to the solicitation document, public restrooms are depicted in the reception area and staff restrooms are shown in the staff service area. This Attachment H is under the auspices of the space requirement criteria announced at B.1. on page 4 of the solicitation document, in which the comment is made "see floor plan, Attachment H, for suggested configuration of offices and rooms." The remarks concerning restrooms that were made in the course of the preproposal conference show that by the discussion in that conference it was determined that two male restrooms and two females restrooms, one each for the public and one each for the staff were contemplated and that they must meet handicapped standards. According to the minutes Petitioner asked if there was

   a requirement for the men's restroom to have urinals or would an additional water closet suffice and he was told that a water closet would suffice. No other discussion was held about the restrooms.

   
   

3. The space requirement criteria, to include the discussion of the requirements for restrooms, do not contemplate that in order for a prospective lessor to be successful in

   responding to the solicitation, that it would be necessary for that prospective lessor to present a design which closely approximated that set forth in Attachment H. It could be expected that a submission which more closely resembled the suggested configuration would be entitled to receive a higher score under the evaluation criterion set out at C.2.

   
   

4. Similarly the score under evaluation criterion C.2. would be greater for the prospective lessor who most closely approximated the number and size of spaces that are described at

   B.1. wherein it is stated:

   
   

   Approximate number/size

   a) 0	offices not to exceed 220 sq.ft. each	0
   b) 3	offices not to exceed 150 sq.ft. each	450
   c) 25	offices not to exceed 120 sq.ft. each	3000
   d) 13	offices not to exceed 150 sq.ft. each	1170
   e) 3	offices or open clerical areas not to
   	exceed 60 sq.ft. each (Computer area)	220
   f)	Internal circulation	1202
   g)	File area	466
   h)	Reception area sq.ft.	400
   i)	Conference Room	800
   j)	Storage Area	345
   k)	Copier machine area	250
   l)	Employee lounge	240
   m)	Mail room (inc'l) with k above)	0
   n)	Other requirements (Automation Equipment)	240
   o)	Urinalysis Lab Area	72

   
   

5. The critical item concerning space requirements is announced at A.1. on page 1 of the solicitation document. Therein the net square footage is estimated to be 8,855 feet plus 3 percent measured in accordance with the Standard Method of Space Measurement as identified in Attachment A. Both prospective lessors met the net square footage requirement. Both prospective lessors achieved substantial compliance with the more specific requirements set forth in B.1. as to approximate number and sizes of offices and other spaces. Petitioner did the better job in that sense as shown in the comparison of the spaces that are contemplated by the Petitioner's proposal contrasted with that of the Intervenor. That comparison is shown in Petitioner's Exhibit 2 admitted into evidence. It can also be seen in the comparison of the rough sketches of floor plans submitted by the prospective lessors. Joint Exhibit 2 describes the prospective floor plan for Petitioner and Joint Exhibit 3 describes the prospective floor plan for the Intervenor. The Intervenor's submission is a recapitulation of the spaces associated with its most recent tenant, the State Attorney for the Daytona Beach, Florida, Circuit. No special emphasis has been placed on having this floor plan

   approximate suggested design of Attachment H. Petitioner's attempt is one which more closely approximates Attachment H, at least as to specific spaces contemplated in B.1. to the solicitation document.

   
   

6. At the preproposal conference of April 5, 1990, the prospective lessors were told that the support staff offices could be open space or be separated with half-wall partitions as opposed to being fully enclosed offices. The spaces that are offered by the Intervenor correspond to this opportunity.

   
   

7. Both proposals responded adequately to all other criteria as well as the space requirement criterion.

   
   

8. In examining the proposals by the competitors, Joint Exhibit 2 admitted into evidence for the Petitioner and Joint Exhibit 3 admitted into evidence for Intervenor, Respondent used the evaluation criteria set out in C. at page 7 of the Solicitation Document. Three people constituted the review committee. The evaluation by the committee members was through independent consideration of the proposals. Their aggregate scores were 252 points for Petitioner and 290 for the Intervenor of a possible 300 points. The scoring in the aggregate and through individual observations of the committee members may be found in Joint Exhibit

   4 admitted into evidence, a composite.

   
   

9. Over the period of the lease and the option period, Intervenor's proposal is much more economical. Therefore, under Criteria C.1. the scores that were given individually by the committee members and the aggregate scoring, which the committee members continue to urge in the course of the final hearing were reasonable. All other scores were reasonable in the aggregate and individually with the exception of the scores under C.2.; the scores for Petitioner under C.4. assigned by two committee members, which were three points low in the aggregate, and the scores assigned by two committee members for criterion C.11 which were four points low in the aggregate. Concerning the scores under C.2., having considered the testimony at hearing, scores assigned should be reversed. These adjustments would increase Petitioner's score to 267 and lower Intervenor's score to 282. Intervenor would still win with these adjustments.

   
   

10. Petitioner timely filed its protest of the decision to award a contract to Intervenor.

    
    

11. Intervenor timely filed its request to intervene in this action.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action in accordance with Sections 120.53(1) and 120.57(1), Florida Statutes:

    
    

13. To prevail, Petitioner has the burden of proving that his proposal is responsive to the RFP, that Intervenor' s proposal is not responsive to the RFP and that his proposal is the best choice for the Respondent in the event that Intervenor's proposal is found

    to be responsive. As an adjunct, Petitioner has the burden to prove that the application of the evaluation criteria would favor it in terms of overall points assigned. This proof would include an examination of the performance of the committee members and their basic fairness in assigning points. See Department of Transportation v. J.W.C., 396 So.2d 778 (Fla. 1st DCA 1981).

    
    

14. In engaging in competitive bidding, Respondent should ensure that a fair competition takes place in which both prospective lessors are treated on equal terms, having in mind receipt of the best value for the state in terms of expense. It has done so here. See, Harry Pepper and Associates, Inc., vs. City of Cape Coral, 352 So.2d 1190 (Fla. 2nd DCA 1978).

    
    

15. Section A identified the general specifications and requirements and at A.1. established that the net square footage would be 8,855 square feet plus 3 percent measured in accordance with the Standard Method of Space Measurement as set out in Attachment A. Both proposals met that fundamental requirement.

    
    

16. Section B.1. more specifically described the space requirement criteria by setting out the approximate number and sizes of offices and other spaces and through Attachment H gave a suggestion of how the configuration could be established.

    
    

17. Section B.6. set out the number of restrooms for the public and staff for both men and women and the conveniences to be found within those restrooms.

    
    

18. To be acceptable, the proposals did not need to place the items such as restrooms in the exact location contemplated by Attachment H. Failure to closely approximate the suggested configuration in Attachment H could down grade the rating assigned to the proposal through the evaluation criterion C.2. Both proposals are at variance with Attachment H. Petitioner's proposal most closely resembles the design described in Attached H, especially as related to public restrooms. It is a much tighter fit when compared to the requirements of B.1. as to approximate number/size of spaces to include offices and other spaces. Intervenor's proposal, while at variance with the space requirement criteria concerning approximate number/size announced at B.1., and in comparison to the suggested configuration in Attachment H, to include the location of the restrooms described at B.6., is substantially in compliance with the specifications for space requirements. See, Robertson Electrical Co., Inc., vs. Dade County, 417 So.2d 1032 (Fla. 3rd DCA 1982), and Tropabest Foods, Co., Inc. vs. State, Department of General Services, 493 So.2d 50 (Fla. 1st DCA 1986).

    
    

19. In comparing the two proposals both of which are found to be responsive, resort is made to the evaluation criteria. The scores assigned by the three committee members have been considered in the context of the presentation at hearing and the adjustments made to that scoring as set forth in the findings of fact. With these adjustments the action of the agency in deciding to award the contract to the Intervenor is justifiable. See Liberty County v. Baxter's Asphalt and Concrete, Inc., 427 So.2d 505 (Fla. 1982).

RECOMMENDATION

In consideration of the facts found and conclusions of law reached, it is,

RECOMMENDED:

That a Final Order be entered which dismisses

Petitioner's Formal Written Protest and finds that the Intervenor submitted the lowest and best proposal for provision of lease space under RFP 700:0561.

DONE and ENTERED this 25th day of September, 1990, in Tallahassee, Florida.

CHARMS C. ADAMS, 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 September, 1990.

APPENDIX

CASE NO. 90-3007BID

The following discussion is given concerning the

proposed facts set out in the proposed recommended orders of the parties:

Petitioner' s Facts

Paragraphs A-D are subordinate to facts found. Paragraph E.1 is contrary to facts found.

Concerning Paragraph E.6., sufficient description has

been given of the present configuration of space in relationship to net rentable square footage.

Paragraph E.7 is contrary to facts found. Paragraph E.8 is contrary to facts found.

The remaining sentences of Paragraph E. are subordinate to facts found.

Paragraph F is contrary to facts found.

Concerning Paragraph G, although the performance by the committee members was not entirely acceptable, their determinations have been modified. The adjustment did not change the outcome.

Concerning Paragraph H, see remarks concerning Paragraph G.

Respondent' s Facts

Paragraph 1 is subordinate to facts found.

Paragraph 2 is not necessary to the resolution of the dispute.

Paragraphs 3 through 8 are subordinate to facts found.

Paragraph 9 is not necessary to the resolution of the dispute.

Paragraph 10 is accepted and no finding has been made to

the effect that public restrooms must be placed in the lobby area.

Paragraphs 11 through 17 are subordinate to facts found.

Intervenor has joined in the proposed recommended order of Respondent.

COPIES FURNISHED:

Glenn D. Storch, Esquire STORCH & HANSEN, P.A.

Suite 300

1620 South Clyde Morris Boulevard Daytona Beach, Florida 32119

Perri M. King, Esquire Department of Corrections 1311 Winewood Boulevard

Tallahassee, Florida 32399-2500

Lawrence W. Borns, Esquire

312 North Halifax Avenue Daytona Beach, Florida 32118

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

Tallahassee, Florida 32399-2500

Docket for Case No: 90-003007BID

Orders for Case No: 90-003007BID