STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RED COATS, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 92-4310BID

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent, )

)

and )

) BEST MAINTENANCE AND JANITORIAL ) SERVICE, INC., )

)

Intervenor. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Claude B. Arrington, held a formal hearing in the above-styled case on September 14, 1992, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Gerry Gordon, Esquire

1413 South Howard Avenue Suite 202

Tampa, Florida 33606

For Respondent: Colleen A. Donahue, Esquire

Department of Health and Rehabilitative Services

District 10 Legal Office Room 513

201 West Broward Boulevard Fort Lauderdale, Florida

33301-1885

For Intervenor: Stephen G. Murty, Esquire

Jay R. Tome, Esquire Murty and Tome, P.A. 777 Brickell Avenue

Miami, Florida 33131 STATEMENT OF THE ISSUE

Whether Petitioner's bid protest should be upheld.

PRELIMINARY STATEMENT

On April 24, 1992, the Respondent issued a Request for Proposals (RFP) pertaining to the provision of housekeeping services at South Florida State Hospital. Several entities, including Petitioner and Intervenor, submitted responses. After the responses were evaluated, it was recommended that Intervenor be awarded the contract. Petitioner's response was ranked as the second best proposal. Following the announcement of the ranking of the evaluation committee, Petitioner filed this bid protest. While the protest initially asserted several grounds in support of its contention that Respondent should not award the contract to Intervenor, at the formal hearing the Petitioner abandoned all grounds except for the assertion that Intervenor had failed to disclose as a part of its financial information the existence of a tax lien. Petitioner contends that the failure to disclose the tax lien should result in either the contract being awarded to it or the return of the matter to the evaluation committee for reevaluation.

At the hearing, Petitioner presented the testimony of Frank Estok, an employee of Respondent who authored the request for proposal. Respondent presented no witness. Intervenor presented the testimony of Walter Garcia, an employee of Petitioner, and of Susan Diaz, the president of the Intervenor. All parties stipulated to the admissibility of 12 joint exhibits, each of which was accepted into evidence.

No transcript of the proceedings has been filed. Rulings on the parties' proposed findings of fact may be found in the Appendix to this Recommended Order. The Petitioner did not file a post-hearing submittal.

FINDINGS OF FACT

1. On April 24, 1992, the Respondent issued a Request for Proposals (RFP) pertaining to the provision of housekeeping services at South Florida State Hospital.

   
   

2. Petitioner and Intervenor submitted responses to the RFP. After all responses were received, Respondent convened an evaluation committee to evaluate the responses. The evaluation committee recommended that Intervenor be awarded the contract. Petitioner's response was ranked by the evaluation committee as the second best response.

   
   

3. Following the publication of the results of the evaluation committee, Petitioner filed a bid protest and asserted several grounds in support of its protest. At the formal hearing, the Petitioner abandoned all grounds except for the assertion that Intervenor had failed to disclose as a part of its financial information the existence of a tax lien. Petitioner asserted that the failure to disclose the tax lien should result in either the contract being awarded to it or the return of the matter to the evaluation committee for reevaluation.

   
   

4. A Notice of Tax Lien was filed by the Florida Department of Labor and Employment Security for unpaid unemployment compensation taxes and was in the amount of $1,900.00. Intervenor paid the amounts secured by the said lien on May 12, 1992, which was before the responses were due to the RFP on June 5, 1992.

   
   

5. The RFP requires certain financial information of the bidders, but it does not require bidders to list tax liens that may have been filed against it.

   There is no evidence that Intervenor failed to provide the financial information required by the RFP or that the information was inaccurate or incomplete.

   
   

6. Petitioner failed to establish that the existence of this tax lien would have had any bearing on the evaluation of the responses. There was no evidence that Intervenor gained an unfair advantage over Petitioner or any other bidder by failing to disclose this tax lien in its response to the RFP. There was no evidence that Intervenor acted in bad faith or that it tried to misrepresent its financial condition.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over this matter. Section 120.57(1), Florida Statutes.

   
   

8. Petitioner has the burden of proving by a preponderance of the evidence that it is entitled to the relief it seeks. See, Rule 28-6.08(3), Florida Administrative Code. See also, Florida Department of Transportation v. J.W.C., Co., 396 So.2d 778 (Fla. 1st DCA 1981). Petitioner has failed to meet that burden.

   
   

9. The contractual services required by Respondent must be procured by the competitive bid process. See, Section 287.057(1), Florida Statutes. Section 287.012(13), Florida Statutes, provides the following definition of the term "responsive bidder":

   
   

   (13) "Responsive bidder" or "responsive offeror" means a person who has submitted a bid which conforms in all material respects to the invitation to bid or request for proposals.

   
   

10. Petitioner has failed to establish in this proceeding that Respondent acted fraudulently, arbitrarily, illegally, or dishonestly in determining that the Intervenor's response to the RFP was "responsive" within the meaning of Section 287.012(13), Florida Statutes. See, D.O.T. v. Groves-Watkins Construction, 530 So.2d 912 (Fla. 1988). Petitioner has failed to establish a basis for rejecting Intervenor's response to the RFP or for returning Intervenor's response to the evaluation committee for further consideration.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which dismisses Petitioner's bid

protest.

DONE AND ORDERED this 8th day of October, 1992, in Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

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 8th day of October, 1992.

APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 92-4310BID

The Petitioner did not file a post-hearing submittal.

The proposed findings of fact submitted on behalf of the Respondent are adopted in material part by the Recommended Order.

The following rulings are made on the proposed findings of fact submitted on behalf of the Intervenor.

1. The proposed findings of fact in paragraphs 1, 2, 3, 4, 5, 6, 7, and 30 are adopted in material part by the Recommended Order.

2. The proposed findings of fact in paragraphs 8, 9, 10, 11, 12, 14, 15, 16, 17, 19, 20, 21, 22, 23, 25, 26, 27, 28, 29, and 31 are rejected as being subordinate to the findings made.

3. The proposed findings of fact in paragraph 13 are rejected as being unsubstantiated by the evidence. The testimony of Ms. Diaz as to whether the amount of the tax lien was included in this figure was equivocal.

4. The proposed findings of fact in paragraph 18 are rejected as being unnecessary to the conclusions reached. When the Department of Labor and Employment Security satisfied the lien of record is not relevant to the issues presented by this matter.

5. The proposed findings of fact in paragraph 24 are rejected as being unnecessary to the findings made.

COPIES FURNISHED:

Gerry Gordon, Esquire 1413 South Howard Avenue Suite 202

Tampa, Florida 33606

Colleen A. Donahue, Esquire Department of Health and

Rehabilitative Services District 10 Legal Office Room 513

201 West Broward Boulevard

Fort Lauderdale, Florida 33301-1885

Stephen G. Murty, Esquire Jay R. Tome, Esquire Murty and Tome, P.A.

777 Brickell Avenue

Miami, Florida 33131

R. S. Power, Clerk 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: 92-004310BID

Orders for Case No: 92-004310BID