STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KEVIN T. ROBERTS d/b/a DIAMONDHEAD ) PARTNERSHIP, )

)

Petitioner, )

)

1. ) CASE NO. 90-7786BID

   ) DEPARTMENT OF HEALTH AND REHABILITATIVE ) SERVICES, )

   )

   Respondent. )

   )

   
   

   RECOMMENDED ORDER

   
   

   Pursuant to notice, a formal hearing was held in this case on December 27, 1990, in Leesburg, Florida, before the Division of Administrative Hearings, by its designated Hearing Officer, Diane K. Kiesling.

   
   

   APPEARANCES

   
   

   For Petitioner: Joe A. McClain

   Attorney at Law Post Office Box 4

   402 East Church Avenue Dade City, Florida 33525

   
   

   For Respondent: Frances S. Childers

   Assistant District 3 Legal Counsel

   1000 N.E. 16th Avenue Gainesville, Florida 32609

   
   

   STATEMENT OF ISSUES

   
   

   The issue is whether Petitioner's bid was responsive to the Department of Health and Rehabilitative Services' Invitation to Bid 590:2248 for lease space in Lake County, Florida.

   
   

   PRELIMINARY STATEMENT

   
   

   Petitioner presented the testimony of Kevin T. Roberts and had Exhibit 1 admitted in evidence. The Department of Health and Rehabilitative Services (HRS) presented the testimony of Donald J. Cerlanek and had HRS Exhibit 1 admitted in evidence. The parties also had Joint Exhibits 1 and 2 admitted.

   
   

   No transcript was filed. The parties agreed the proposed findings of fact and conclusions of law would be filed no later than January 8, 1991. HRS timely filed its proposed order. Petitioner failed to file a proposed order. HRS's

   proposed findings of fact and conclusions of law have been considered. A specific ruling on each proposed finding of fact is made in the Appendix attached hereto and made a part of this Recommended Order.

   
   

   FINDINGS OF FACT

   
   

   1. Department of Health and Rehabilitative Services issued its Invitation to Bid (ITB) No. 590:2248 for lease space in Lake County, Florida. The ITB contained bidder specifications, evaluation criteria and documentation requirements.

      
      

   2. Petitioner Kevin T. Roberts submitted a bid within the time limits of the ITB.

      
      

   3. Petitioner Roberts attended a pre-bid conference conducted by HRS.

      
      

   4. In its ITB, HRS reserved the right to reject any and all bids.

      
      

   5. The ITB required that the bid must show control of the property by the owner of record, a lease with documentation, an option to purchase with documentation, or an option to lease with authority to sublease with documentation.

      
      

   6. The ITB required that the successful bidder enter into a lease with HRS on the lease form attached to the ITB as Attachment E (Joint Exhibit 1). This lease form required exclusive-use parking spaces.

      
      

   7. The ITB required a minimum of 300 parking spaces.

      
      

   8. Petitioner was present at the pre-bid conference where the exclusive nature of parking spaces required by the bid was discussed.

      
      

   9. Petitioner's bid contains 30 exclusive-use parking spaces.

      
      

   10. The site plan of the Lake Hills Shopping Center submitted with Roberts' bid shows a total of 378 parking spaces for the entire shopping center. Approximately one-half of the space in the center is included in the bid proposal. The available parking spaces are insufficient to meet the minimum requirements of the ITB.

       
       

   11. The shopping center involved in the bid proposal has approximately 40,000 square feet of lease space which was not included in the bid proposal.

       
       

   12. Diamondhead Partnership is a partnership under the laws of the State of Florida, and Kevin T. Roberts and Thomas E. Smith are the general partners of the partnership.

       
       

   13. Diamondhead Partnership holds an option to lease and authority to sublease 45,000 square feet of the commercial space located in the Lake Hills Shopping Center.

       
       

   14. Kevin T. Roberts submitted a bid proposal in his individual name for 45,000 square feet of commercial space located in the Lake Hills Shopping Center in Eustis, Lake County, Florida. The documentation to show control of the property filed by Roberts with his bid contained a copy of Diamondhead Partnership's lease option.

   15. Thomas E. Smith, the other general partner in Diamondhead Partnership, submitted a bid proposal in his individual name for the same 45,000 square feet of commercial space located in the Lake Hills Shopping Center in Eustis, Lake County, Florida, and relied on the same copy of Diamondhead Partnership's lease option.

       
       

   16. Kevin T. Roberts does not have control of the property that is the subject of his bid proposal.

       
       

   17. The ITB requires that the name of the entity submitting the bid be identified and, if a partnership, that the name of the partnership be typed or stamped on the bid. Further, Roberts used his personal social security number on his bid and not the partnership's tax ID number. The ITB requires the social security number or tax ID number of the entity submitting the bid.

       
       

   18. Diamondhead Partnership, the entity with control of the property, did not file a bid in this case.

       
       

       CONCLUSIONS OF LAW

       
       

   19. The Division of Administrative Hearings has jurisdiction of the parties to and subject matter of these proceedings. Section 120.53(5) and 120.57(1), Florida Statutes.

       
       

   20. Section 255.25(3), Florida Statutes, provides that no state agency shall enter into a lease for use of 2,000 square feet or more in a privately owned building except upon advertisement and receipt of competitive bids.

       
       

   21. Rule 10-13.012, Florida Administrative Code, reserves to the user agency the right to reject any or all bids. It also provides that minor deviations can be waived by the agency. The rule defines a minor deviation as one which does not affect the price of the bid, or does not give the bidder an advantage or benefit not enjoyed by other bidders, or does not adversely impact the interests of the Department. Further, this rule also provides that variations from the bid specifications that are not minor cannot be waived. Roberts has failed to prove that the documentation contained in the bid proposal places control of the property in the bidder, Kevin T. Roberts. Control of the proposed lease property is not a minor variation and cannot be waived by the agency.

       
       

   22. The bid submitted by Roberts also fails to show the required number of parking spaces available for HRS's exclusive use at the site, thus failing to be responsive to the minimum requirements of the ITB for parking space. Lack of adequate parking would adversely impact the interests of the Department and, therefore, is not a minor deviation and cannot be waived by the agency.

       
       

   23. The Petitioner has the burden of proving that his bid was responsive to the ITB. The bid proposal must be evaluated on the bid submitted to the agency by the bidder and cannot be amended or altered by subsequent submissions. The Petitioner failed to meet this burden of proof. The bid submitted by Kevin

T. Roberts was not responsive to the ITB. HRS correctly rejected the bid.

RECOMMENDATION

Based 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 rejecting the bid of Kevin T. Roberts as nonresponsive to ITB 590:2248.

DONE and ENTERED this 28th day of January, 1991, in Tallahassee, Florida.

DIANE K. KIESLING

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 28th

day of January, 1991.

APPENDIX TO RECOMMENDED ORDER

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted in this case.

Specific Rulings on Proposed Findings of Fact Submitted by Respondent,

Department of Health and Rehabilitative Services

1. Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1); 3-17(2-16); and 19(19)

   
   

2. Proposed findings of fact 2 and 18 are irrelevant.

COPIES FURNISHED:

Frances S. Childers, Assistant Counsel HRS District 3 Legal Office

1000 N.E. 16th Avenue Gainesville, FL 32609

Joe A. McClain, Attorney at Law McClain, Dwyer & Sestak, P.A. Post Office Box 4

402 East Church Avenue Dade City, FL 33526

Sam Power, Clerk Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Linda K. Harris

Acting 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 written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 90-007786BID

Orders for Case No: 90-007786BID