STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS

ELIZABETHAN DEVELOPMENT, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 90-5335BID

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

This cause came on for consideration upon Respondent Department of Health and Rehabilitative Services' (HRS') Motion to Dismiss filed September 4, 1990 and has been decided upon the stipulated facts and pleadings of record.

APPEARANCES

For Petitioner: Alan Taylor

Elizabethan Development, Inc. Post Office Box 7077

Winter Haven, Florida 33883

For Respondent: Frances S. Childers, Esquire

HRS District 3 Legal Office 1000 Northeast 16th Avenue Gainesville, Florida 32609

STATEMENT OF THE ISSUE

Should Petitioner Elizabethan Development, Inc. prevail in its challenge of Respondent Department of Health and Rehabilitative Services' Invitation to Bid (ITB) pursuant to Section 120.53(5) F.S. and Rule 10-13.011 F.A.C.?

PRELIMINARY STATEMENT

The bid protest herein was referred to the Division of Administrative Hearings on August 28, 1990. By an August 30, 1990 Notice of Hearing, the undersigned scheduled formal hearing on the merits for September 7, 1990.

Upon stipulation of the parties, that formal hearing was continued to the mutually agreeable hearing date of October 11, 1990, and oral argument was heard on Respondent's Motion to Dismiss on September 7, 1990 by telephonic conference call.

Following oral argument, an Order was entered September 10, 1990 granting the parties until September 17, 1990 to file initial written arguments on the motion and until September 20, 1990 to file their respective supplemental or responsive arguments.

Petitioner and Respondent each filed only initial written arguments. The material facts are not disputed.

FINDINGS OF FACT

1. On May 15, 1990, HRS mailed its ITB which is the subject of this proceeding. The ITB sought an existing facility for the agency to lease in Cross City, Florida, for use as a full client service center. Upon the face of the ITB documents, a preproposal conference was scheduled for May 23, 1990.

   
   

2. Petitioner Elizabethan Development, Inc. received the ITB on May 16, 1990, as evidenced by a certified mail return receipt for that date.

   
   

3. Petitioner filed its written intent to protest dated July 13, 1990 with the HRS agency clerk on July 16, 1990. Petitioner filed nothing with HRS prior to that date.

   
   

4. Under the terms of the ITB, sealed bids were due to be received by HRS no later than 2:00 p.m. July 18, 1990.

   
   

5. Petitioner filed no bid in response to the ITB prior to bid closing, nor at any other time.

   
   

6. HRS proceeded to open and award the lease on July 18, 1990, despite Petitioner's July 16, 1990 intent to protest.

   
   

7. Petitioner filed its formal protest dated July 24, 1990 with the agency clerk on July 26, 1990.

   
   

8. Petitioner currently leases to HRS the building HRS now occupies in Cross City, Florida, and which HRS occupied at the time the ITB was issued. The July 16, 1990 intent to protest contained no specific information as to the nature of Petitioner's protest. The main thrust of the allegations contained in the July 26, 1990 formal written protest is that the specifications in the May 1990 ITB were so narrowly drawn that only one potential bidder (not Petitioner) could be responsive and that Petitioner could become responsive if ITB specification changes were negotiated. Additionally, the written protest alleged a number of problems which are, in essence, disputed issues with regard to the existing lease contract between Petitioner and HRS, which issues should more properly be brought before an Article V court.

   
   

9. Petitioner admitted that its delay in filing its intent to protest and formal protest was occasioned by its conscientious preparation of its protest through undertaking an investigation of the existing available buildings in Cross City, Florida.

   
   

10. Petitioner further admitted that its delay in filing its intent to protest and formal protest was voluntary and not induced by any representations by HRS or its employees.

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction of the parties and subject matter of this cause. See, Section 120.57(1) F.S.

    
    

12. Section 120.53(5) F.S. provides, in pertinent part:

    
    

    (5) An agency which enters into a contract pursuant to the provisions of ss. 282.301-282.313, chapter 255, chapter 287, or chapters 334-349 shall adopt rules specifying procedures for the resolution of protests arising from the contract bidding process. Such rules shall at least provide that:

    * * *

    (b) Any person who is affected adversely by the agency decision or intended decision shall file with the agency a notice of protest in writing within 72 hours after the posting of the bid tabulation or after receipt of the notice of the agency decision or intended decision and shall file a formal written protest within 10 days after the date he filed the notice of protest. Failure to file a notice of protest or failure to file a formal written protest shall constitute a waiver of proceedings under this chapter. The formal written protest shall state with particularity the facts and law upon which the protest is based.

13. Rule 10-13.011 F.A.C. provides, in pertinent part: Protest Procedures for Real Property leases.

    1. Time Period Within Which Protest Shall Be Filed. A written notice of protest or intent to protest shall be filed with the designated Leasing Coordinator within

       72 hours after receipt of the notice of agency decision. Within 10 days after the date of initial protest or intent to protest was filed, the protestor shall file a formal written protest with the designated Leasing Coordinator. Protests not filed within the aforementioned time period constitute a waiver of proceedings under Chapter 120, Florida Statutes and shall not be considered.

       
       

14. In Capeletti Brothers, Inc. v. Dept. of Transportation, 499 So.2d 855 (Fla. 1st DCA 1986), the court interpreted Section 120.53(5) F.S. and Rule 14- 25.04(1) F.A.C., a former rule of the State of Florida Department of Transportation which was substantially similar to Rule 10-13.011 F.A.C. That case held that the proper procedure to contest a bid solicitation requirement is by filing a bid solicitation protest within 72 hours of receipt of the project plan and specifications. The reasoning of Judge Zehmer's opinion at page 857 therein clearly addresses the instant set of facts:

    
    

    The evidence reflects that Capeletti had the plans and specifications at least two weeks prior to the bid- letting and failed to make any objection to the contract goals. The purpose of the bid solicitation protest provision is to allow the agency, in order to

    save expense to the bidders and to assure fair competition among them, to correct and clarify plans and specifications prior to accepting bids. A failure to file a timely protest constitutes a waiver of chapter 120 proceedings. Section 120.53(5) Florida Statutes (1985). See also Cianbro v. Jacksonville Transit Authority, 473 So.2d 209 (Fla. 1st DCA 1985).

    
    

15. In the case at bar, Petitioner's "window" for filing an intent to protest closed 72 hours after Petitioner's receipt of the ITB on May 16, 1990.

    
    

16. It is undisputed that the first document (intent to protest) filed by this Petitioner with HRS was dated July 13, 1990 and received/filed at HRS on July 16, 1990 (60 days). Such a filing is not timely under either the statute or the rule. Even assuming, arguendo, that the May 23, 1990 prebid conference could provide a different trigger date due to its potential for modifications to the ITB arising from potential bidders taking that opportunity to give their input on the ITB specifications [See, Planning and Research Corporation v. State of Florida Department of Transportation and Cubic Western Data Inc., DOAH Case No. 90-1583BID, RO entered May 22, 1990], Petitioner's intent to protest the specifications in the ITB was filed 45 days after the prebid conference, and 45 days in no way comports with 72 hours on anybody's time clock. The law is clear with regard to the necessity of timely filing of bid protests: Failure to timely file constitutes a waiver of Chapter 120 F.S. proceedings.

    
    

17. Petitioner admitted that its written intent to protest was not filed within the 72-hour "fast track" time frame established by statute and rule. Petitioner's only arguments against the motion to dismiss are set out in its response to the September 10, 1990 Order, and may be condensed as follows: (a) that Petitioner's "ripened protest" filed July 24, 1990 "was accepted as being timely, being within the 10 days prescribed by Florida Statute;" (b) that because Petitioner had no desire "to restrain the State from soliciting space in Cross City and 72 hours after receiving the bid documents had no intention of filing a protest [sic] Capeletti Bros. v. D.O.T. therefore does not apply;" (c) that "the State gave no reason why there was a 5 week hiatus between receiving the formal written protest and the filing of a motion to dismiss, and (d) that "the motion to dismiss is frivolous and is a veiled attempt to conceal the violation of Florida Statutes, this violation being the opening of a [noncompetitive] bid."

    
    

18. Petitioner's argument (a) is not meritorious upon the foregoing discussion of the statute, rule, and Capeletti case. Since jurisdictional matters may be raised at any time, even in the course of formal hearing on the merits, and may not be waived by the agency, Petitioner's arguments (c) and (d) are without merit. As to argument (b), the untimeliness of the intent to protest is the sole material issue. Petitioner's delay in filing its protest may have been well-motivated from its own corporate viewpoint, but the statute and rule are clear and unrelenting in their 72-hour requirement, which requirement Petitioner admittedly failed to meet. Therefore, it is unnecessary to address the appropriateness vel non of HRS' failure to "freeze" the status quo on July 16, 1990 when the untimely intent to protest was filed.

    
    

19. The untimely intent to protest and protest should be dismissed.

RECOMMENDATION

Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health and Rehabilitative Services enter a Final Order determining the Petitioner's intent to protest and formal written protest to be untimely and dismissing same.

DONE and ENTERED this 27th day of September, 1990, at Tallahassee, Florida.

ELLA JANE P. DAVIS, 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

27th day of September, 1990.

Copies furnished to:

Alan Taylor

Elizabethan Development, Inc. Post Office Box 7077

Winter Haven, Florida 33883

Frances S. Childers, Esquire HRS District 3 Legal Office 1000 N.E. 16th Avenue Gainesville, Florida 32609

Sam Power, Clerk Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Docket for Case No: 90-005335BID

Orders for Case No: 90-005335BID