STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KINNEY SYSTEMS OF FLORIDA, )

INC., )

)

Petitioner, )

)

vs. ) CASE NO. 90-3662BID

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

and )

) MEYERS PARKING SYSTEM, INC., )

)

Intervenor. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly appointed Hearing Officer, J. Stephen Menton, held a public hearing in the above-styled case on June 28-29, 1990, in Miami, Dade County, Florida.

APPEARANCES

For Petitioner: Clifford A. Shulman, Esquire

Juan J. Mayol, Jr., Esquire Greenberg and Traurig, Hoffman, Lipoff, Rosen and Quentel, P.A. 1221 Brickell Avenue

Miami, Florida 33131

For Respondent: Morton Laitner, Esquire

Department of Health and Rehabilitative Services

401 Northwest Second Avenue Suite 5424

Miami, Florida 33128

For Intervenor: Julian H. Kreeger, Esquire

Kreeger and Kreeger, P.A. 1725 Courthouse Tower

44 West Flagler Street Miami, Florida 33130

STATEMENT OF THE ISSUE

The issue in this case is whether the Respondent's proposed award of DCPHU Bid I-90 to the Intervenor, Meyers Parking Systems, Inc., for the management of a parking facility located at 1350 Northwest 14th Street should be upheld.

PRELIMINARY STATEMENT

On May 21, 1990, the Petitioner, Kinney Systems of

Florida, Inc. ("Kinney"), filed a Formal Written Protest/Petition for Formal Hearing regarding the Department of Health and Rehabilitative Services' ("HRS") proposed award of Bid No. DCPHU I-90 to Meyers Parking System, Inc. ("Meyers".) The case was referred to the Division of Administrative Hearings on June 8, 1990.

By Notice of Hearing dated June 15, 1990, the case was scheduled for hearing on June 26, 1990. On June 20, 1990, Meyers filed a Petition to Intervene. By Order dated June 22, 1990, the Petition to Intervene was granted.

On June 20, 1990, the Petitioner filed a Motion To

Stay or Abate Administrative Hearing and to Relinquish Jurisdiction to Department (the "Motion to Stay".) The Motion to Stay sought a remand of the case to HRS because of the alleged failure of HRS to provide an informal settlement conference as required by Section 120.53(5)(d), Florida Statutes. A hearing on the Motion to Stay was conducted by telephone on June 21, 1990. As set forth in an Order dated June 22, 1990, the hearing in this case was rescheduled to June 28-29, 1990 in order to afford the parties an opportunity to informally resolve their dispute in accordance with the provisions of Section 120.53(5)(d). That informal attempt to resolve the case was unsuccessful and the hearing was conducted on June 28-29, 1990.

On June 27, 1990, the Petitioner filed Petitioner's Amended Formal Written Protest/Petition for Formal Hearing (the "Amended Petition".) That Amended Petition contains certain additional factual allegations that were not included in the

original Petition. At the commencement of the hearing, Petitioner filed a Motion for Order to Amend Formal Protest/Petition for Formal Hearing (the "Motion to Amend".) In the Motion to Amend, Petitioner contends it first learned of the additional facts set forth in the Amended Petition during discovery in this case. After hearing argument of counsel at the commencement of the hearing, the Motion to Amend was granted and the Amended Petition was accepted.

At the hearing, the Petitioner presented the testimony

of Anthony R. Beynon, Regional Vice President for the Petitioner, and Richard H. Shera, Project Contract Manager for HRS. Petitioner had seven exhibits marked for identification.

Petitioner's Exhibit 7 was a tabulated notebook with premarked exhibits numbered 1-21. Those documents were referred to as Petitioner's Exhibit 7-1, 7-2, etc. All of Petitioner's exhibits were accepted into evidence except Petitioner's Exhibit 1

(Petitioner's Exhibit 1 was a unilateral pretrial stipulation which was accepted for filing) and Petitioner's Exhibits 7-10 and 7-19 which were not offered.

The Respondent presented the testimony of Eugenia See, Marielena Alonso and Denise West. Respondent had four exhibits marked for identification. All four exhibits were accepted into evidence. The hearsay content of Respondent's Exhibit 4 has been noted.

The Intervenor presented the testimony of Anthony Beynon. The Intervenor had eleven exhibits marked for identification. Intervenor's Exhibit 1 was its unilateral pretrial stipulation which was accepted for filing. The Intervenor's remaining exhibits were accepted into evidence except Intervenor's Exhibit 6 which was not offered and Intervenor's Exhibit 11 which was rejected on the grounds that it was not properly authenticated. At the hearing, Intervenor was granted leave to supplement the record in order to authenticate Intervenor's Exhibit 11. No such authentication has been submitted. In any event, Intervenor's Exhibit 11 deals with a totally unrelated contract that Petitioner was seeking at the Miami International Airport. That document is deemed to be irrelevant to any issue in this proceeding.

A transcript of the hearing has been filed. By Stipulation of the parties, proposed recommended orders were due by August 27, 1990. All parties have timely filed proposed recommended orders. A ruling on each of the parties' proposed findings of fact is included in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. For approximately the last ten years, Kinney has operated the parking lot at the Dade County Public Health Unit building located at 1350 N.W. 14th Street in Miami, Florida (the "Parking Lot") pursuant to a contract with HRS.

   
   

2. The existing contract between Kinney and HRS for

   the management of the Parking Lot was entered in June 1989 and was scheduled to expire on June 30, 1990. That contract included two one-year options to renew. The contract also included a provision that allowed either party to terminate the contract upon thirty days notice.

   
   

3. The contracts for management of the Parking Lot in previous years were substantially identical in form to the existing contract.

   
   

4. In February of each year, a contract review committee consisting of the head of the administrative services department of the facility (the "Contract Manager') and several other employees of the facility would meet to discuss the Parking Lot contract and to determine whether to renew the contract or rebid it. (This Committee will be referred to as "Parking Lot Committee.") The Contract Manager (whose title has been recently

   changed to Administrative Services Director) essentially chaired the Parking Lot Committee and appointed the other employees who served on the Committee.

   
   

5. For the last ten years the Contract Manager has

   been responsible for overseeing this contract. During this time, his main contacts at Kinney were Chuck Adams, who was usually at the Parking Lot on a daily basis, and Mr. Adams' supervisor, Ken Deutsch. Both Mr. Deutsch and Mr. Adams left the employ of Kinney sometime prior to February, 1990. The exact date of their departure was not established. Both Mr. Deutsch and Mr. Adams now work for Meyers.

   
   

6. Kinney's new representative with respect to the Parking Lot contract was Tony Benyon, who assumed those

   responsibilities on February 1, 1990. Mr. Benyon had previously worked for Meyers and was on the job only twenty two days before the decision was made to rebid the contract.

   
   

7. On February 22, 1990, the Parking Lot Committee met and determined not to renew the contract with Kinney. At the

   time this decision was made, the Contract Manager was aware that the former Kinney employees had switched jobs and were now working for Meyers. However, it does not appear that he brought the job changes to the attention of the Parking Lot Committee because at least one member of the Committee was not aware of the job changes.

   
   

8. On or about March 23, 1990, HRS issued an invitation to bid for the management and operation of the Parking Lot (the "Invitation to Bid.")

   
   

9. Although the evidence did not establish exactly how

   many time this contract had been bid in the past, it appears that bids were solicited for this contract on at least two prior occasions during the ten years that Kinney had been operating the Parking Lot. On each occasion, the Invitation to Bid form was substantially identical to the form used in March of 1990.

   
   

10. Page 6 of the Invitation to Bid requested bidders to submit a resume of their backgrounds.

    
    

11. Page 8 of the Invitation to Bid was entitled "Bid Sheet" and required bidders to submit the following information: "(1) Proposal for Operating the Lot; (2) Proposed Rates, (3) Proposed Net Income Distribution." The Invitation to Bid did not require the bidders to provide any documentation regarding their financial condition nor did it indicate that prior job performance would be considered in evaluating the bids.

    
    

12. The Invitation to Bid contained a provision that

    "any questions concerning conditions and specifications shall be directed in writing to this office for receipt no later than ten

    (10) days prior to the bid opening."

13. Between the time the Invitation to Bid was sent

    out and the bids were received, the Contract Manager admits that he "probably" had conversations with some of the bidders and responded to questions about the bid. The Contract Manager could not specifically recall any such discussions with potential bidders between the time the Invitation to Bid was sent out and the date the bids were submitted. However, he admitted that it was likely that some discussions took place. Kinney was never advised of any such discussions between the Contract Manager and other potential bidders.

    
    

14. Three sealed bids (including proposals from Kinney and Meyers) were received and opened by HRS at a bid opening on

    April 4, 1990. A fourth bid was disqualified because it was not sealed. The members of the Parking Lot Committee and representatives of the bidders were present at the bid opening.

    
    

15. The bid submitted by Kinney proposed a net income distribution to HRS of 82.5 percent with the remaining 17.5 percent being retained by Petitioner. The Kinney bid also contained a specific breakdown of anticipated costs, fees and expenses to be deducted from the projected gross income to achieve projected net income, a resume and a list of references regarding other-lots being managed by the Petitioner in the area.

    
    

16. Meyers and Hi-Rise Parking Systems, Inc. ("Hi- Rise") also submitted bids. Both of those bids contained a proposed net income distribution of 90 percent to HRS. Neither the Hi-Rise nor the Meyers' bids contained a resume or a list of

    local references of other lots being managed by the companies nor did they contain a listing of anticipated costs, fees and expenses.

    
    

17. At the bid opening, the Contract Manager indicated that the bids submitted by Meyers and Hi-Rise were the low bids and the Parking Lot Committee would meet to determine how to "break the tie." At this point, Kinney was effectively eliminated from consideration.

    
    

18. By letter dated April 10, 1990, the Contract Manager requested additional information from Meyers and Hi-Rise as follows:

    
    

    1. Company background information including officers, organization and latest financial/management audit; [and]

    2. At least three references to include name of contact person, firm, mailing address and telephone number.

       
       

19. The Contract Manager did not request any additional information from Kinney or the disqualified bidder.

    
    

20. On or about April 16, 1990, Meyers submitted the requested information to the Contract Manager. On or about April 17, 1990, Hi-Rise submitted the requested information to the Contract Manager. Thus, it is clear that information regarding

    the financial condition of Meyers and Hi-Rise was not submitted until after the bids were opened.

    
    

21. On May 1, 1990, the Parking Lot Committee met to discuss the additional information received from Meyers and Hi- Rise. At that meeting, the members of the Committee completed a "bid selection review form" that listed (1) net income distribution (2) references and (3) company management and financial condition as the criteria for evaluation of the bids. The Committee determined that Meyers and Hi--Rise were "tied" in all categories except financial condition.

    
    

22. At best, the submitted financial information provides a cloudy picture of Meyers' financial status. The

    information indicates that Meyers showed an income loss for the year 1988-1989 of $3,670,000. While a large portion of this loss is apparently related to corporate restructuring, it does not appear that any members of the Parking Lot Committee understood or fully considered this financial information nor did they seek to have the submitted financial information reviewed by an accountant. Hi-Rise's financial records indicate that it is a significantly smaller company, but its records indicated a positive cash flow for the preceding year. Notwithstanding these facts, the Committee decided to award the contract to Meyers.

    This decision was essentially made on the recommendation of the Contract Manager. The bid selection review form stated as follows:

    
    

    Based on bids and additional information provided, the Parking Lot Management Bid Selection Team recommended award of DCPH Bid No. I-90 to Meyers Parking System, Inc.

    
    

23. On May 9, 1990, HRS provided all interested parties with a notice of its selection of Meyers as the successful bidder. In the Notice of Selection, HRS indicated that Meyers had been selected based on the proposed net income distribution, references, background and financial condition.

    
    

24. Petitioner timely filed a protest of the proposed award of the contract.

    
    

25. The Parking Lot Committee excluded Kinney from consideration based solely upon the net income distribution percentage. However, since the Invitation to Bid did not require the bidders to specify or limit in any way the expenses that could be deducted from gross revenues prior to distributing proceeds to HRS, there was an insufficient basis to accurately evaluate the proceeds that HRS could reasonably expect pursuant to any of the bid proposals. HRS and Meyers have argued that, because HRS has many years experience and expense records relating to the operation of the Parking Lot, the information provided pursuant to the Invitation to Bid provided HRS with sufficient information to make a reasonable evaluation of the financial terms of the proposals. This contention is rejected.

    To permit such uncertainty and discretion to be built into the bid process would substantially undermine the integrity and dependability of the process.

    
    

26. Item 12 on page 6 of the Invitation to Bid required that "bidders will submit a resume of their background and other local lots they are currently managing." No such resume or lists were provided by Meyers. Meyers contends that its response to Item 1 on Page 8 of 8 adequately addressed this requirement.

    That response provided as follows:

    
    

    PROPOSAL FOR OPERATING LOT. Meyers

    Parking System, Inc. proposes to operate the Dade County Health department's parking lot with the same high degree of professionalism that we are known for and have demonstrated to our other clients throughout the county. The facility will be managed by trained, uniformed, courteous employees and supervised regularly and closely with our field supervisors and our Regional Vice-President...

    
    

    This statement is not a sufficient response to Item 12 of the Invitation to Bid.

    
    

27. During the Parking Lot Committee meeting on February 22, 1990, several complaints were made regarding

    Kinney's performance under the existing contract. However, no efforts were ever undertaken by HRS to terminate the existing contract with Kinney. While HRS contends that the complaints were part of the reason for deciding to rebid the contract, no steps were taken to disqualify Kinney from bidding on the new contract. In any event, most of the complaints voiced on February 22, 1990 would have been the responsibility of the prior managers of Kinney who now work for Meyers.

    
    

28. In February and March of 1990, the disbursements to HRS under the existing contract diminished significantly. This decrease in payments was the result of embezzlement by

    Kinney employees. While HRS has cited this shortage to justify its decision in awarding the contract to Meyers, there is no evidence that HRS ever attempted to terminate the existing contract nor does it appear that the Parking Lot Committee considered this fact in deciding to eliminate Kinney's bid from consideration. Similarly, the evidence established that there have been problems during the months of March, April and May of 1990 with attendants failing to appear at work on time or leaving the job site. Again, however, there is no indication that HRS attempted to terminate the existing contract or that the Parking Lot Committee relied upon these factors in deciding to eliminate the Kinney bid from consideration.

    
    

29. There have been recurring complaints made to

    Kinney under the existing contract regarding excessive towing of cars from the Parking Lot. The problem of parking lot attendants

    ordering cars towed without the permission of HRS has existed off and on for sometime. Even though HRS representatives had voiced complaints about the. towing policies, the evidence indicates that this recurring problem became worse in the late spring and early summer of 1990. Nonetheless, HRS never sought to terminate the existing contract because of the towing problems nor did the Parking Lot Committee rely upon this fact in deciding to eliminate the Kinney bid from consideration.

    
    

    CONCLUSIONS OF LAW

    
    

30. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.53(5) and 120.57(1), Florida Statutes (1989).

    
    

31. Section 287.001, Florida Statutes, provides as follows:

    
    

    The Legislature recognizes that fair and open competition is a basic tenet of public procurement; that such competition reduces the appearance and opportunity for favoritism and inspires public confidence that contracts are awarded equitably and economically; and that documentation of the acts taken and effective monitoring mechanisms are important means of curbing any improprieties and establishing confidence in the process by which contractual services are procured. It is essential to the effective and ethical procurement of contractual services that there be a system of uniform procedures to be utilized by state agencies in managing and procuring contractual services; that detailed justification of agency decisions in the procurement of contractual services be maintained; and that adherence by the agency and the consultant to specific ethical considerations be required.

    
    

32. Section 287.057, Florida Statutes (1989) governs

    the procurement of contractual services by the state. Subsection

    2 of that statute provides in pertinent part:

    
    

    (2) Unless otherwise authorized by law, all contracts for contractual services shall be awarded by competitive sealed bidding. An invitation to bid shall be issued which shall include a detailed description of the services sought; the date for submittal of bid; and all contractual terms and conditions applicable to the procurement of

    contractual services, including the criteria which shall include, but need not limited to, price, to be used in determining acceptability of the bid. ... Evaluation of bids shall include consideration of the total cost for each year as quoted by the bidder. No criteria may be used in determining acceptability of the bid that was not

    set forth in the invitation to bid.... (emphasis added)

    
    

33. The purpose of competitive bidding was explicated

    in Hotel China and Glassware Company vs. Board of Instruction,

    130 So.2d 78, 81 (Fla. 1st DCA 1961), where the court stated as follows:

    
    

    Competitive bidding statutes are enacted for the protection of the public. They create a system by which goods or services required by public authorities may be acquired at the lowest possible cost. This system confers upon the contractor and the public authority reciprocal benefits, and exacts from each of them reciprocal obligations. The bidder is assured fair consideration of his offer, and is guaranteed the contract if his is the lowest and best bid received. The principle benefit flowing to the public authority is the opportunity of purchasing the goods and services required by it under the best price obtainable. Under this system, the public authority may not arbitrarily or capriciously discriminate between bidders, or make the award on the basis of personal preference. (emphasis added)

    
    

34. Competitive bidding statutes should be construed to advance their purpose and to avoid their being circumvented. Webster v. Belote, 103 Fla. 976, 138 So. 721 (1931).

    
    

35. A public agency is vested with wide discretion in evaluating bid proposals and awarding contracts to responsive bidders. System Developement v. Department of Health and Rehabilitative Services, 423 So.2d 433 (Fla. 1st DCA, 1982). See also, Liberty County v. Baxter's Asphalt and Concrete, Inc., 421 So.2d 505 (Fla. 1982). Nonetheless, a state agency cannot act arbitrarily or capriciously in awarding contracts. Department of Transportation vs. Grove Watkins Constructors, 537 So.2d 912, 914 (Fla. 1988).

    
    

36. As the party challenging the award of the contract, Petitioner must prove by a preponderance of the evidence that the Respondent's actions were arbitrary and capricious or that it

    acted in an otherwise improper manner. Capeletti Bros., Inc. v. State, Department of General Services, 432 So.2d 1359 (Fla. 1st DCA 1983).

    
    

37. In this case, the evidence indicates that HRS' decision to award the contract to Meyers was arbitrary and subverted the purpose of competitive bidding.

    
    

38. It is clear that the ultimate criteria used in awarding the bid to Meyers was its financial condition vis-a-vis Hi-Rise. However, nothing in the Invitation to Bid established financial condition as one of the criteria to be used in making the selection. By utilizing a criteria not set forth in the Invitation to Bid, HRS has violated the provisions of Section 287.057(2), Florida Statutes. Furthermore, because the Meyers bid did not include all of the information required in the Invitation to Bid, Meyers should have been disqualified rather than awarded the bid. Indeed, HRS' actions in soliciting, obtaining and utilizing additional information from some of the bidders after the bid opening has subverted the entire bidding

    process. 1/ Finally, it should be noted that by utilizing only net income distribution as the basis for evaluating the relative economic value of the bids, HRS was unable to determine

    accurately which of the bids offered the best financial return to the state. In other words, the Invitation to Bid wad formulated in a manner that left too many contingencies open and did not provide a definitive basis for awarding the contract and/or eliminating one of the bidders.

    
    

39. While HRS contends that the information obtained from Hi-Rise and Meyers subsequent to the bid opening did not constitute an alteration of the bids and did not give those

    bidders a benefit or advantage, it is clear that the information provided after the bid opening was decisive in the decision to award the bid to Meyers. As such, that information was necessarily material to the process and should not have been considered unless it was included in the original bid package.

    
    

40. As explained in Harry Pepper and Associates, Inc.

    1. City of Cape Coral, 352 So.2d 1190, 1192 (Fla. 2nd DCA, 1978):

       
       

       [It] is apparent that the entire scheme of bidding on public projects is to ensure that sanctity of the competitive atmosphere prior to and after the actual letting of the contract. In order to ensure this desired competitiveness, a bidder can not be permitted to change his bid after the bids have been opened except to clear minor irregularities.

       
       

41. Since financial condition was the ultimate deciding factor in awarding the bid, it cannot be considered a "minor irregularity."

42. The evidence in this case suggests some favoritism towards Meyers in the biding process. While there is no indication of deliberate manipulation, it is clear that the Contract Manager was comfortable with the professional relationship he had developed with the prior employees of Kinney who subsequently went to work for Meyers. The procedures and manner in which this bid was handled raise a question as to the fairness of the process and mandate that the process be started over.

    
    

43. Meyers and HRS contend that the services rendered

    by Kinney under the existing contract deteriorated significantly during the period from February through May of 1990 and this deterioration was properly considered in determining to award the contract to Meyers. However, the evidence indicates that no efforts were taken to terminate the existing contract. Moreover, there is no indication that deteriorating service was considered in deciding to eliminate Kinney from consideration during evaluation of the bids. Indeed, absent some specific criteria in the Invitation to Bid, it is questionable whether performance under the existing contract could be considered. HRS has other remedies available if the service provided under the existing contract is poor. In the meantime, however event, the bid process for awarding a new contract must be fair, reasonable and comport with the statutory requirements.

    
    

44. In view of the irregularities noted above, HRS' decision to award the contract to Meyers Parking was arbitrary and capricious. Therefore, HRS should reject all bids and issue a new Invitation to Bid.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the Secretary of the Department of

Health and Rehabilitative Services enter a Final Order rejecting all bids for DCPHU Bid I-90 and issue a new Invitation to Bid.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 31 day of October, 1990.

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 31 day of October, 1990.

ENDNOTES

1/ As indicated in Findings of Fact 13, it appears that

there may also have been some improper contract between some of the bidders and HRS personnel between the time the Invitation to Bid was sent out and the time of the bid opening. However, no specific evidence was presented regarding the nature of any such contacts.

APPENDIX

All parties have submitted Proposed Recommended Orders. The following constitutes my rulings on the proposed findings of fact submitted by the parties.

The Petitioner's Proposed Findings of Fact

Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or

Reason for Rejection.

1. Subordinate to Findings of Fact 7 and 27.

2. Adopted in substance in Findings of Fact 8.

3. Adopted in substance in Findings of Fact 11.

4. Adopted in substance in Findings of Fact 22.

5. Subordinate to Findings of Fact 13.

6. Subordinate to Findings of Fact 13.

7. Adopted in substance in Findings of Fact 14, 15, and 16.

8. Adopted in substance in Findings of Fact 18.

9. Adopted in substance in Findings of Fact 19.

10. Adopted in substance in Findings of Fact 20.

11. Adopted in substance in Findings of Fact

    21 and 22.

12. Adopted in substance in Findings of Fact 23.

13. Adopted in substance in Findings of Fact

    24 and in the preliminary statement.

14. Adopted in substance in Findings of Fact

    24 and in the preliminary statement.

15. Adopted in the preliminary statement.

16. Adopted in the preliminary statement.

17. Rejected as constituting argument. This subject matter is addressed in Findings of Fact 15 and 16.

18. Adopted in substance in Findings of Fact 16.

19. Subordinate to Findings of Fact 11.

20. Adopted in pertinent part in Findings of Fact 19, 21 and 22.

21. Rejected as constituting argument. This subject matter is addressed in Findings of Fact 19, 20, 21 and 22.

The Respondent's Proposed Findings of Fact

Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or

Reason for Rejection.

1. Adopted in the conclusions of law.

2. Adopted in substance in Findings of Fact 8.

3. Adopted in substance in Findings of Fact 11.

4. Adopted in substance in Findings of Fact 14.

5. Adopted in substance in Findings of Fact 14.

6. Adopted in substance in Findings of Fact

   14 and 16.

7. Adopted in substance in Findings of Fact 16.

8. Adopted in substance in Findings of Fact 15.

9. Subordinate to Findings of Fact 15, 16 and 17.

10. Subordinate to Findings of Fact 17 and 18.

11. Subordinate to Findings of Fact 21 and 22.

12. Adopted in substance in. Findings of Fact 1.

13. Subordinate to Findings of Fact 25.

14. Adopted in substance in Findings of Fact 4.

15. Subordinate to Findings of Fact 27, 28 and

    29. It is important to note that several of the factors cited in this proposal did not arise until after the Parking Lot Committee decided not to renew the contract.

16. Rejected as constituting argument and subordinate to the conclusions reached in the Recommended Order.

17. Rejected as constituting argument and subordinate to the findings reached in the Recommended Order.

The Intervenor's Proposed Findings of Fact

Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or

Reason for Rejection.

1. Adopted in substance in Findings of Fact 1, 2, 4, 7 and 27.

2. Adopted in substance in Findings of Fact 9.

3. Adopted in substance in Findings of Fact

   10 and 11.

4. Adopted in substance in Findings of Fact 14.

5. Adopted in substance in Findings of Fact

   15 and 16.

6. Subordinate to Findings of Fact 27, 28 and 29.

7. Adopted in substance in Findings of Fact 17.

8. Rejected as irrelevant.

9. Subordinate to Findings of Fact 18, 19, 20, 21 and 22.

10. Rejected as vague, ambiguous and constituting a conclusion of law.

11. Rejected as irrelevant.

12. Subordinate to Findings of Fact 25.

13. Subordinate to Findings of Fact 13, 18, 19 and the conclusions of Law.

14. Rejected as irrelevant.

COPIES FURNISHED:

Clifford Shulman, Esquire Juan J. Mayol, Jr., Esquire Greenberg, Traurig, Hoffman

Lipoff, Rosen and Quentel, P.A.

1221 Brickell Avenue

Miami, Florida 33131

Morton Laitner, Esquire Department of Health and

Rehabilitative Services

401 Northwest Second Avenue Suite 5424

Miami, Florida 33128

Julian H. Kreeger, Esquire Kreeger and Kreeger, P.A. 1725 Courthouse Tower

44 West Flagler Street Miami, Florida 33130

Sam Power, Agency Clerk Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Linda K. Harris General Counsel

Department of Health and Rehabilitative Services

1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

ALL PARTIES HAVE THE RIGHT TO SUBMIT TO THE DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES WRITTEN EXCEPTIONS TO THIS RECOMMENDED ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST TEN DAYS IN WHICH TO SUBMIT WRITTEN EXCEPTIONS. YOU SHOULD CONSULT WITH THE DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES CONCERNING ITS RULES ON THE DEADLINE FOR FILING EXCEPTIONS TO THIS RECOMMENDED ORDER.

Docket for Case No: 90-003662BID

Orders for Case No: 90-003662BID