STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FRED BOOZER, )

)

Petitioner, )

)

vs. ) CASE NO. 92-2372BID

) DEPARTMENT OF LABOR AND ) EMPLOYMENT SECURITY, )

)

Respondent, )

)

and )

) WOODLAKE S.W. NO. 1 LTD., )

)

Intervenor. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Mary Clark, held a formal hearing in the above- styled case on May 4, 1992, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Howard M. Swerbilow, Esquire

Post Office Box 541271

Merritt Island, Florida 32954-1271

For Respondent: Edward A. Dion, Esquire

Department of Labor and Employment Security

Suite 307, Hartman Building 2012 Capital Circle Southeast Tallahassee, Florida 32399-2189

For Intervenor: Jack Spira, Esquire

5205 Babcock Street N.E. Palm Bay, FL 32905

STATEMENT OF THE ISSUES

The issue for determination is whether the Florida Department of Labor and Employment Security illegally rejected Petitioner's bid as nonresponsive.

PRELIMINARY STATEMENT

After Petitioner's timely protest of rejection of his bid and intended award to the Intervenor, the matter was referred to the Division of Administrative Hearings on April 17, 1992.

Respondent filed its statement of compliance on May 1, 1992, as required in an April 20, 1992 prehearing order, certifying that all bidders had been notified of the protest and the formal hearing.

On April 30, 1992, Alan Taylor, on behalf of Elizabethan Development Corporation, filed a letter stating the bidder's intent to intervene and to appear at the hearing. No further communication was received from Mr. Taylor, and when he did not appear at the hearing he was deemed to have withdrawn his request to intervene.

At the commencement of the hearing, the hearing officer granted the motion to intervene filed by Woodlake S.W. No. 1 Ltd.

Six joint exhibits were introduced and received in evidence. Petitioner's four exhibits were also received, and Petitioner presented the testimony of Peggy Braz, Fred Boozer, Jr. and Fred Boozer, Sr.

Intervenor's six exhibits were received and Intervenor presented the testimony of Joseph Kolb. The Respondent presented the testimony of Yvonne Mobley and no exhibits in addition to the joint exhibits.

Each party submitted proposed recommended orders and the findings of fact proposed by each are addressed in the attached Appendix.

FINDINGS OF FACT

1. Fred Boozer, Sr., (Boozer), the Petitioner, owns Boozer Properties, a family business which includes a building at 2235 South Babcock Street, Melbourne, Brevard County, Florida. The building is currently occupied by staff of the Florida Department of Labor and Employment Security (LES) and other tenants.

   
   

2. In south Brevard, LES staff also occupies another building in Palm Bay. Because of staff expansion and the need to co-locate its offices, LES issued a Request for Proposal (RFP) for Lease No. 540:0904 on January 28, 1992. The RFP had been previously advertised but was successfully challenged on issues unrelated to the issues in this proceeding.

   
   

3. The January 1992 RFP sought approximately 11,474 to 11,818 square feet of office space.

   
   

   The RFP also specified that 95 off-street parking spaces be provided for the exclusive use of LES employees and clients. The spaces were to be suitably paved and lined, and under the control of the bidder.

   
   

   The RFP advertised a pre-proposal conference on February 4, 1992. No bidder attended, and no objections to the RFP were filed.

   
   

4. Six responses were received on the February 28th deadline, one of which was immediately determined to be nonresponsive. The remaining bid proposals were evaluated, and Boozer's bid, offering his Babcock Street site, and 95 parking spaces, received the highest points from the evaluation committee.

   
   

5. During a recent LES bidding process for office space in West Palm Beach, a problem arose with a bidder's ability to provide the required parking spaces.

   Cognizant of this, the LES leasing manager contacted the City of Melbourne to determine whether the apparent bid winner, Boozer, could meet his obligation to provide 95 spaces.

   
   

6. The written response dated March 20, 1992, from Dominic Mauriello, a Melbourne city planner, provides his estimation that, for the various uses in the Babcock Street building, 207 parking spaces would be required. The memo states that a site plan on file at the city planning office reflects that there are 165 spaces.

   
   

   The site plan attached to Boozer's bid proposal submitted to LES indicates that

   175 spaces are available.

   
   

7. LES staff person, Lynne Mobley, telephoned Fred Boozer on March 24, 1992, informing him of the memorandum from the city. He responded with a request that he be allowed twenty-four hours to provide additional information.

   
   

8. By March 27, 1992, the LES leasing office had not received further information from Boozer. The RFP had advertised a 30-day deadline for the bid award, which deadline fell on a weekend. The agency considered that it needed to make the award on Friday, the 27th. After contacting the City of Palm Bay to assure that the next highest rated response could deliver the requisite parking spaces, a letter was sent notifying Woodlake S.W. No. 1, Ltd., (Woodlake) of its award.

   
   

9. In a letter dated March 27, 1992, LES notified Boozer that its bid was determined nonresponsive based on the outcome of investigation and consultation with the city regarding his inability to produce the required 95 exclusive spaces.

   
   

10. In the meantime, Fred Boozer had contacted Peggy Bray, the City's Planning and Zoning Administrator, who provided an amended estimation stating that 190 spaces would be required for the Babcock Street site, and that the site currently includes 184 parking spaces. Ms. Bray's letter, dated March 27, 1992, states that in order to provide 95 spaces for the Department of Labor, 1800 square feet of office space would need to remain vacant. The Bray letter was immediately sent by facsimile transmission to LES, and was received the afternoon of March 27th, after the award and rejection notices were sent.

    
    

11. Boozer's building is approximately 39,000 square feet. Several tenants are month to month lessees, and another tenant is expected to move prior to the beginning of the LES lease term.

    
    

    Boozer is willing to keep vacant the 1800 square feet and contemplated that necessity when he submitted his bid proposal. He did not include this agreement in his written bid response, but neither did LES specifically ask, either in the bid form or at the time of the committee's site walk-through prior to the bid award.

    
    

    Boozer contends that he responded on the bid proposal that he would provide 95 exclusive spaces and he remains willing to provide those spaces.

    
    

12. At hearing, Boozer disclosed that 20 additional parking spaces are located adjacent to the subject property and are available for use by HRS' County Health Services, another tenant in the Babcock Street building. The spaces would reduce by 20 the spaces required by the city code, but their

    existence was not disclosed in the bid proposal as they are not part of the attached site plan.

    
    

13. Boozer's onsite parking spaces range from one-half to one foot short of the eleven-feet width required by the city code. No evidence was presented with regard to any pending or contemplated enforcement action, and LES did not base its decision on this defect.

    
    

14. LES did base its decision on a good-faith reliance on the communication by a member of the City of Melbourne planning staff. Even when that initial communication was corrected by the planning administrator, the number of spaces available were still less than needed for LES purposes and to comply with the City's code. LES did not anticipate, nor was it informed prior to bid award, of Boozer's ability and willingness to keep space vacant to comply with his commitment to provide 95 parking spaces to LES.

    
    

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction in this proceeding pursuant to Sections 120.53(5) and 120.57(1), Florida Statutes.

    
    

16. A public agency has wide discretion in the bidding process, and its decision when based upon the honest exercise of that discretion, should not be overturned, even if it may appear erroneous and even if reasonable persons may disagree. Liberty County v. Baxter's Asphalt and Concrete, Inc., 421 So.2d 505 (Fla. 1982).

    
    

    Here, eminently reasonable persons disagree, but the burden of proof is on the unsuccessful bidder who seeks to establish its entitlement to the award. J.W.C. Co., Inc. v. Department of Transportation, 396 So.2d 778 (Fla. 1st DCA 1981).

    
    

17. The burden of proof is particularly weighty in bid cases such as this where the hearing officer's responsibility is limited to a determination of whether the agency acted fraudulently, arbitrarily, illegally or dishonestly in concluding that Petitioner's bid was nonresponsive. Department of Transportation v. Groves-Watkins Constructors, 530 So.2d 912 (Fla. 1988); Moore

1. State of Florida, Department of HRS, et al., 17 FLW D878 (Fla. 1st DCA opinion filed April 2, 1992).

   
   

   Here, the preponderance of evidence established that if the agency erred at all, it was a mere peccadillo and not an error rising to the level of fraud, arbitrariness, illegality or dishonesty. No law or rule or precept of plain reason prohibits the agency from investigating a bidder's ability to produce what it promises.

   
   

   Petitioner was given an opportunity to participate in the investigation, but that participation came too late; the agency relied on the information it had available, and honestly exercised its discretion.

   
   

   RECOMMENDATION

   
   

   Based on the foregoing, it is hereby, recommended that a final order be entered dismissing Petitioner's protest of intended bid award.

   RECOMMENDED this 18th day of June, 1992, in Tallahassee, Leon County, Florida.

   
   

   
   

   MARY CLARK

   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 18th day of June, 1992.

   
   

   APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-2372BID

   
   

   The following constitute specific rulings on the findings of fact proposed by the parties.

   
   

   Petitioner's Proposed Findings of Fact

   
   

   1. Adopted in paragraphs 2, 3 and 4.

      
      

   2. Adopted in paragraphs 4 and 9.

      
      

   3. Adopted in paragraph 6.

      
      

   4. Adopted in substance in paragraph 7.

      
      

   5. Rejected as unnecessary. The testimony of Ms. Mobley is that she did not receive the message.

      
      

   6. Adopted in paragraph 10.

      
      

   7. Adopted in paragraphs 8 and 9.

      
      

   8. Adopted in paragraphs 10 and 13.

      
      

   9. Rejected as unnecessary.

10-13. Adopted in paragraph 11.

1. Rejected as unsubstantiated by competent evidence.

   
   

2. Adopted by implication in paragraph 5.

   
   

3. Rejected as irrelevant, except as to Intervenor's spaces, which is adopted in paragraph 8.

1718. Rejected as unnecessary and irrelevant. Respondent's Proposed Findings of Fact

Intervenor's Proposed Findings of Fact

1-2. Adopted in substance in paragraph 3.

3. Rejected as unnecessary.

4-5. Adopted in paragraph 4.

1. Adopted in paragraph 3.

   
   

2. Adopted in paragraph 4.

   
   

3. Adopted in paragraph 11.

   
   

4. Adopted in paragraph 4.

   
   

5. Adopted in paragraph 5.

   
   

6. Adopted in paragraph 6.

   
   

7. Adopted in paragraph 7.

   
   

8. Adopted in paragraph 10.

   
   

9. Adopted in paragraph 9.

15-16. Adopted in paragraph 8.

1. Rejected as unnecessary.

   
   

2. Adopted in Preliminary Statement.

19-28. Rejected as unnecessary.

COPIES FURNISHED:

Howard M. Swerbilow, Esquire Post Office Box 541271 Merritt Island, FL 32954-1271

Edward A. Dion, Esquire Department of Labor and

Employment Security

Suite 307, Hartman Building 2012 Capital Circle Southeast Tallahassee, FL 32399-2189

Jack Spira, Esquire

5205 Babcock Street N.E. Palm Bay, FL 32905

Alan Taylor

Elizabethan Development Corporation

245 Avenue O S.W. Winter Haven, FL 33880

Frank Scruggs, Secretary Department of Labor and

Employment Security

303 Hartman Building 2012 Capital Circle S.E.

Tallahassee, FL 32399-2152

Cecilia Renn

Chief Legal Counsel Department of Labor and

Employment Security

303 Hartman Building 2012 Capital Circle S.E.

Tallahassee, FL 32399-2152

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: 92-002372BID

Orders for Case No: 92-002372BID