STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DONALD E. JACOBSON and JOHN R. REA, )

)

Petitioners, )

)

vs. ) CASE NO. 94-0074BID

)

DEPARTMENT OF CORRECTIONS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on January 25, 1994, in Tallahassee, Florida, before Stuart M. Lerner, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioners: Donald E. Jacobson

Post Office Box 3430

Fort Pierce, Florida 34946

For Respondent: Steven S. Ferst, Esquire

Office of the General Counsel Department of Corrections 2601 Blair Stone Road

Tallahassee, Florida 32399-2500 STATEMENT OF THE ISSUE

Whether the Department of Corrections (hereinafter referred to as the "Department") should sustain Petitioners' challenge to the preliminary determination to award Lease No. 700:0674 to C.G. Gulf Property Associates, L.P. (hereinafter referred to as "Gulf")?

PRELIMINARY STATEMENT

By letter signed by Petitioner Donald E. Jacobson and dated December 29, 1993, Petitioners protested the Department's preliminary determination to award Lease No. 700:0674 to Gulf. In his letter, Jacobson stated the following:

Due to the fact that there is only approximately ten Thousand Dollars ($10,000.) difference in our bid and Gulf Properties bid, I would like to point out to the State that it will certainly cost the State more than

$10,000.00 to move the Probation offices from their present location to a new location.

I would also like to point out, the Probation offices have been at the present location for about six years without any problems or complaints, to our knowledge. Any requests to us for repairs, additional maintenance, replacements, additions (where possible), etc., have always been taken care of in a timely manner and to the satisfaction of your on-site Management.

I would like to add, the present location of the Probation and Parole Services offices was converted by my company to the Probation SPECS at a cost to my company of over $100,000.00. For us to convert our building back to a more conventional office building will be very costly to us. Therefore, this move is not only going to cost the State unnecessary money, but me as well. Were you aware the present location is across from the Fort Pierce Police Station and your employees feel very comfortable at the present location due to the location?

Looking to the future in regard to parking, I know that everyone has parking problems in Office Centers, when the majority of the offices are leased. The site belonging to C. G. Gulf, could possibly have many parking problems down the road, when their Office Center fills up with tenants. Right now they will have no problem because of the "Glut" of office spaces available in our area, and they will probably be able to provide the 30 spaces as required in the lease. 30 spaces is probably enough in the future, for your employees, but with crime on an increase will 30 spaces be adequate for employees and "clients"? Our site will have no conflict. We can guarantee you up to 100 reserved parking spaces, if needed.

We do protest the awarding of the bid to C.G. Gulf Property, as we feel it is not in the best interest of the State of Florida to change locations. In addition, we are willing to lower our bid by One Dollar per Square Foot over the Five year bid period.

On January 7, 1994, the matter was referred to the Division of Administrative Hearings (hereinafter referred to the "Division") for the assignment of a Division hearing officer to conduct a formal hearing.

The undersigned Hearing Officer was assigned the case on January 10, 1994. The following day he issued a Notice of Hearing scheduling the case for hearing and a Prehearing Order requiring the parties to confer and submit a prehearing stipulation.

On January 10, 1994, the same day the Hearing Officer was assigned the case, the Department filed a motion requesting that the Hearing Officer issue "an order dismissing Petitioner[s'] Formal Written Protest (the 'Petition') or in the alternative . . . require Petitioner[s] to provide a more definite statement." A hearing on the motion was held by telephone conference call on January 13, 1994. That same day, the Hearing Officer issued an order which provided as follows:

1. By no later than 5:00 p.m. on Wednesday, January 19, 1994, Petitioner[s] shall "post with [Respondent] a bond payable to [Respondent] in an amount equal to 1 percent of the estimated total rental of the basic lease period, or $5,000, whichever is less," as required by Section 255.25(3)(c), Florida Statutes.

   
   

2. By no later than 12:00 noon on Tuesday, January 18, 1994, Petitioner[s] shall provide counsel for Respondent with a written statement setting forth with particularity those facts upon which [their] protest is based.

   
   

3. Petitioner[s] shall file with the Hearing Officer written verification that [they] have timely complied with the directives set forth in paragraphs 1. and 2. above.

   
   

4. Petitioner[s'] failure to timely comply with the directives set forth in paragraphs 1. and 2. of this Order may result, upon Respondent's motion, in the entry of an order recommending the dismissal of Petitioner[s'] bid protest.

   
   

5. If Petitioner[s] timely compl[y] with the directives set forth in paragraphs 1. and 2. of this Order and a final hearing is held, the parties will have the opportunity at the hearing to present evidence on the issues raised in paragraphs 11. and 12. of Respondent's motion,1 and the Hearing Officer will address these issues in the recommended order he issues following the hearing.

   
   

6. To the extent that Respondent's motion requests relief not specifically provided in this Order, the motion is denied.

On January 19, 1994, Petitioner Jacobson filed with the Division a pleading in which he stated the following:

Petitioner complies with Order dated January 11, 1994 and states:

COST OF MOVING

To substantiate my claim that it will cost the State over Ten Thousand Dollars, ($10,000.) to move the Probation from their present location I will submit to you at the hearing on the 25th of January, bids to that effect.

I presently have one bid for over Thirteen Thousand Dollars to move the present computer and phone systems, not accounting for the moving of furniture, etc.

Due to the short time factor I have, to date, only secured one bid, but will have additional by the hearing date.

SECURITY

1. The present location, that Probation selected six years ago, gives the employees security that you could not get in an old, rather deteriorated shopping plaza, due to the fact that the present site is located within

   100 feet of the Ft. Pierce new two million dollar police station.

   
   

2. The present site has no conflict with any other office or business so the parolees are no problem to any other business.

   
   

3. At the present location when it is necessary for a probation officer to contact the police regarding a parolee problem (and this happens frequently) no scene is created for adjacent businesses.

PARKING

Zoning requires one parking space for every two hundred square feet of retail or office.

3222 Plaza, has 40110 square feet of office and retail space. The bid sheet asked for thirty reserved spaces. The Probation office has 28 employees and 950 cases.

The Probation office will be renting only fourteen percent of 3222 Plaza and Lessor is guaranteeing twenty percent of the parking in a plaza that is Fifty (50) parking spaces short of Code, Code being 200 spaces.

We are offering thirty guaranteed spaces and twenty more if needed.

On January 21, 1994, the Department, on behalf of both parties, filed the prehearing stipulation required by the Hearing Officer's January 11, 1994, order. The prehearing stipulation reflected that the parties had a difference of opinion regarding the ultimate issue to be resolved by the Hearing Officer in the instant case, the Department taking the position that this issue was "[w]hether the Department acted fraudulently, arbitrarily, illegally or dishonestly in awarding the lease to Gulf," with Petitioners contending that it was "[w]hether [the] Department failed to award [the] lease to [the] best or proper party." According to Petitioners, they "should [have been awarded 99 points by the bid evaluation committee] and Gulf should have [received] less than that."

At the final hearing that was held in the instant case on January 25, 1994, Petitioners presented the testimony of one witness, Petitioner Jacobson, and offered four exhibits into evidence. Petitioners' Exhibits 1, 2 and 4 were unconditionally received into evidence. Petitioners' Exhibit 3, according to Jacobson's testimony, was a site plan of Gulf's property that Jacobson had obtained from the City of Fort Pierce. The Hearing Officer indicated that he would receive Petitioners' Exhibit 3 into evidence, over Respondent's objection,

provided that Petitioners filed with the Division of Administrative Hearings a copy of the site plan, certified by an appropriate local governmental employee or official, no later than ten days following the close of the hearing. The Department presented the testimony of four witnesses: Maria Cortes, the Department's Region IV General Services Manager and three additional Department employees, Tony Harper, Jorge Gonzalez, and Ronnie White, all of whom served on the bid evaluation committee that evaluated the bid proposals submitted in the instant case. The Department also offered seven exhibits into evidence, all of which were received by the Hearing Officer. At the close of the evidentiary portion of the hearing, the Hearing Officer announced on the record that post- hearing submittals had to be filed no later than ten days following the Hearing Officer's receipt of the transcript of the hearing.

On February 3, 1994, the Hearing Officer received a letter dated February 2, 1994, from Petitioner Jacobson, with several attachments. A certified copy of Petitioner's Exhibit 3 was not among the documents received. On February 7, 1994, Respondent filed a motion requesting that the Hearing Officer enter "an order striking the February 2, 1994 letter sent to the Hearing Officer and all attachments to that letter." A hearing on the matter was held by telephone conference call on February 15, 1994. The following day, the Hearing Officer issued an order granting the Department's Motion to Strike and, over the Department's objection, giving Petitioners additional time, until February 18, 1994, to file a certified copy of Petitioners' Exhibit 3 with the Division. The Hearing Officer advised in his order that "[i]f such a certified copy is not filed with the Division on or before February 18, 1994, Petitioners' Exhibit 3 will not be considered as evidence by the Hearing Officer."

On February 17, 1994, the Hearing Officer received from Petitioners, what they represented to be, an "authentic copy of the original site plan" of Gulf's property. On February 22, 1994, Respondent filed a motion requesting that Petitioners' February 17, 1994, submission "be stricken from the record in this proceeding, along with the site plan introduced at the January 25, 1994 hearing." A hearing on the motion was held by telephone conference call on February 28, 1994. On March 1, 1994, the Hearing Officer issued an order granting the motion inasmuch as Petitioners' February 17, 1994, submission did not constitute a certified copy of the site plan offered into evidence at hearing as Petitioners' Exhibit 3.

On March 3, 1994, ten days after the Hearing Officer had received the transcript of the final hearing held in this case, Petitioners and the Department timely filed separate post-hearing submittals. These post-hearing submittals have been carefully considered by the Hearing Officer. They each contain what are labelled as "findings of fact." These "findings of fact" proposed by the parties are specifically addressed in the Appendix to this Recommended Order.

On March 9, 1994, the Department filed a motion requesting that Petitioners' Proposed Findings of Fact 8. and 9. "be sticken." As noted above, the Hearing Officer's disposition of these proposed "findings of fact," and, resultingly, the Department's motion to have these proposed findings stricken, is found in the Appendix to this Recommended Order.

FINDINGS OF FACT

Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made:

1. In or about the fall of 1993, the Department issued a Request for Proposal and Bid Proposal Submittal Form (hereinafter referred to as the "RFP") for Lease No. 700:0674.

   
   

2. Through the RFP, the Department solicited the submission of proposals to lease to the Department 5,748 square feet + 3 percent of office space in St. Lucie County for use as a probation and parole office commencing "5/1/94 or within 105 days after notification of award of bid whichever occurs last." According to the RFP, the term of the lease would be "[f]ive (5) years with an option to renew for an additional five (5) years."

   
   

3. The probation and parole office in question is currently located in space leased to the Department by Petitioners.2 It has been at this location, which is in close proximity to the City of Fort Pierce police station, for approximately the last six years.

   
   

4. Section A. of the RFP contained the "General Specifications and Requirements."

   
   

5. The subject of "parking" was addressed in paragraph 7. of Section A., which provided as follows:

   
   

   Parking: Approximately 30 off-street spaces

   for the exclusive use of the employees and clients at no additional charge to the lessee. Parking space must be under the control of the bidder and

   be suitably paved, lined, and bumper pads installed.

   A minimum of two spaces must meet the requirements

   of the Standards for Special Facilities for physically disabled, Attachment D.

   
   

   BIDDER RESPONSE: a) exclusive spaces available on-site at no cost to the lessee;

   
   

   b) exclusive spaces available off-site at no cost to lessee.

   Spaces located from proposed facility.

   (distance)

   
   

   As An Option c) non-exclusive spaces available at no cost to lessee. Space located from proposed facility. (distance)

   
   

   
   

   Bidder's Initials

   
   

6. Paragraph 12. of Section A. provided, in pertinent part, that "[t]he proposed space must be an existing building" and that the "[p]roposed use of this building must meet required zoning."

   
   

7. Section B. of the RFP contained the "Space Requirement Criteria."

   
   

8. Paragraphs 2. and 3. of Section B., which provided as follows, set forth the "Electrical requirements" and the "Telephone requirements," respectively:

   1. Electrical requirements

      
      

      1. Minimum of two duplex electrical outlets and one fourplex in each room or office including adequate additional fourplex outlets in each open clerical/file area.

      2. Facility complies with the National Electrical Code.

         
         

         BIDDER ACKNOWLEDGMENT

         Bidder's Initials

         
         

   2. Telephone requirements

      
      

      1. Minimum of one telephone outlet in each room or office including additional outlets in each open clerical/file area.

      2. All wiring, existing or to be installed, complies with the National Electrical Code, Section 8000-3, Paragraph d.

         
         

         BIDDER ACKNOWLEDGMENT

         Bidder's Initials

         
         

9. The subject of "security" was addressed in paragraph 10. of Section B., which provided as follows:

Security requirements: Security shall include but not be limited to the following:

1. Locks on all outside doors and outside windows.

2. Night lights on all outside doors.

3. Night lights in parking area nearest building. Parking lot must be fully illuminated and create no dark shadows.

4. Dead bolt locks on storage space doors.

5. Convex detection mirrors in the lobby.

6. Solid core doors swinging out into the lobby to separate lobby from secure areas.

7. Electric pass-through buzzer locks (with keys) to be installed on solid core doors.

8. Pass-through ports (similar to the Le Febure Model #BK-4431 walk up design window unit) to be used between the lobby and reception area.

9. A two-way intercom system between reception area and the receptionist

   
   

   BIDDER ACKNOWLEDGMENT

   Bidder's Initials

   
   

10. Paragraph 14. of Section B. listed certain "Miscellaneous requirements," including the following:

    PROTECTIVE ALARM SYSTEM

    
    

    The lessor shall, at his own expense, install or cause to be installed, maintain and arrange for 24 hours monitoring with a Certified Security Company during the term of this lease agreement the following equipment in regard to the alarm protective system:

    
    

    Burglar Alarm and Fire Alarm Door bugs and Window Tape

    Dual-Tech Motion Sensors for Computer and Typing areas Panic button with Silent Alarm

    Two 1/2" Bullet proof glass (lexan) in Reception and Cashier's windows . . .

    
    

    Staff of both sexes will be required to work in this facility during both daylight and evening hours. An environment in which staff can expect to be safe is essential.

    
    

    BIDDER ACKNOWLEDGMENT

    Bidder's Initials

    
    

11. The "Evaluation Criteria (Award Factors)" were enumerated in Section

1. of the RFP, which provided as follows:

   
   

   The successful bid will be that one determined to be the lowest and best. All bids will be evaluated based on the award factors enumerated below:

   
   

   1. Rental, using Total Present Value methodology for basic term of lease (See #D, General Provisions Items 1 and 2) applying the preset value discount rate of 5.22 percent

      (Weighting: 40)

   2. Option period- rental rate proposed is within projected budgetary restraints of the department. (Weighting: 10)

   3. Conformance of and susceptibility of the design of the space offered to efficient layout

      and good utilization and to the specific requirements contained in the Invitation to Bid.

      (Weighting: 15)

   4. The effect of environmental factors, including the physical characteristics of the building and the area surrounding it, on the efficient and economical conduct of Departmental operations planned for the requested space. Building should be located in a professional business neighborhood.3

      (Weighting: 7)

   5. Offers providing space all on the same floor. (Weighting: 5)

   6. Frequency and availability of satisfactory public transportation within one block of the offered space.

      (Weighting: 3)

   7. Availability of adequate dining facilities within two blocks of the offered space. (Weighting: 2)

   8. Proximity of offered space to the clients to be served by the Department at this facility. (Weighting: 5)

   9. Proximity of offered space to other Department activities as well as other public services. (Weighting: 3)

   10. Proximity of adequate parking area to the building. Must be well-lighted.

(Weighting: 10)

Total award factors= 100

1. The RFP's "General Provisions" were set forth in Section D. of the RFP. Among these "General Provisions" were the following:

   
   

   1. Failure to file a protest within the time prescribed in Section 120.53(5), Florida Statutes, shall constitute a waiver of proceedings under Chapter 120, Florida Statutes. . . .

1. The Department agrees to enter into a lease agreement based on submission and acceptance of the bid in the best interest of the Department and the State.

2. The Department reserves the right to reject any and all bid proposals for reasons which shall include but not be limited to the agency's budgetary constraints; waive any minor informality or technicality in bids, to accept that bid deemed to be the lowest and in the best interest of the state, and if necessary, to reinstate procedures for soliciting competitive proposals. . . .

10. Late bids, modification of bids, or withdrawal of bids:

(a) Any bid received at the office designated in the solicitation after the exact time specified for receipt will not be considered and will be returned unopened. . . .

1. Sealed bids will be received until 11:00 a.m. on November 23, 1993 . . . at which time all bids will be publicly opened and read aloud. Notification of award will be made within 30 calendar days, and shall be given either by posting the bid tabulation

   at the location where bids were opened or by certified United States mail, return receipt requested. . . .

   Failure to file a protest within the time prescribed in Subsection 120.53(5), Florida Statutes, shall constitute a waiver of proceedings under Chapter 120, Florida Statutes. Protests not filed within the prescribed time limit will not be considered. To comply with this statute, a written notice of protest must be filed with the contact person listed in the request for proposal within 72 hours after receipt of this notice. Within ten days after the notice of

   protest is filed, a formal written notice of protest must be filed with the contact person listed in the Request for Proposal. Any questions concerning the specifications should be directed in writing to David Smith. . .

   
   

2. Petitioners, Gulf and Hoyt C. Murphy submitted bid proposals in response to the RFP using the form provided by the Department. At no time prior to the submission of their bids did any of them protest to the Department concerning any of the provisions of the RFP.

   
   

3. Gulf offered the Department 5,820 net square feet of office space in a shopping plaza it owns in the City of Fort Pierce (hereinafter referred to as "Gulf's plaza"). Petitioners offered the Department the same space they currently lease to the Department.

   
   

4. Gulf's plaza consists of several buildings which, together, take up approximately 32,000 gross square feet of space. These buildings are not fully occupied. Vacancies exist.

   
   

5. The plaza presently has approximately 117 on-site parking spaces.4

   
   

6. Adjacent to the plaza, on an out-parcel, is a Wendy's restaurant which also offers off-street parking.

   
   

7. On the completed forms that they submitted, Petitioners and Gulf agreed to meet all of the specifications and requirements set forth in the RFP, including those relating to zoning,5 off-street parking,6 security, and electrical and telephone wiring, and, in addition, proposed the following per square foot rates for the basic lease and option periods:

   
   

   -BASIC LEASE Petitioners Gulf

   
   

   First Year $13.90 $14.35

   Second Year	14.65	14.35
   Third Year	14.90	14.35
   Fourth Year	15.20	14.70
   Fifth Year	15.50	14.70

   
   

   Option PERIOD

   
   

   First Year $15.75 $15.05

   Second Year	16.00	15.05
   Third Year	16.25	15.05
   Fourth Year	16.50	15.40
   Fifth Year	16.75	15.40

   
   

8. The Department, through its bid evaluation committee, evaluated each of the bid proposals in accordance with "Evaluation Criteria (Award Factors)" set forth in the RFP.

   
   

9. As part of the evaluation process, members of the bid evaluation committee visited each of the properties offered for lease.

   
   

10. It appeared to the committee members, upon their visit, to the Gulf property, that Gulf would be able to provide the Department with "30 exclusive [parking] spaces available on-site," as it had promised it would in the RFP.

11. On December 16, 1993, the chairman of the bid evaluation committee sent the following interoffice memorandum to Maria Cortes, the Department's Region IV General Services Manager, concerning the results of the evaluation process:

    
    

    The Lease Evaluation Committee has completed its review of the bid proposals and has conducted an on-site inspection of each subject building being offered for the above referenced lease [Lease #700:0674].

    
    

    The average score for each evaluation criteria is listed below by bidder number for each bid.

    
    

    #1 [Petitioners]		#2 [Gulf]	#3 [Murphy]
    1.	39.20	40	34.8
    2.	9.40	10	7.70
    3.	15	15	15
    4.	6.3	7	6.3
    5.	5	5	5
    6.	1	1	1
    7.	1.3	2	1.3
    8.	5	5	5
    9.	3	3	3
    10.	9.6	10	9.6
    TOTAL	94.8	98	88.7

    
    

    It is the recommendation of the Lease Evaluation Committee that it would be in the best interest of the Department of Correction and the State of Florida to award this bid to bid number two (2),

    C.G. Gulf Property Associates, L.P., a Delaware Limited Partnership. This bidder received the highest evaluation score and was the lowest bid.

    
    

12. In evaluating the three bids that were submitted, the committee members did not take into consideration the costs that the Department would incur if the Department moved the probation and parole office from its present location to either Gulf's property or Murphy's property, inasmuch as such moving costs were not among the "Evaluation Criteria (Award Factors)" set forth in the RFP. In any event, these costs would be minimal because the Department would utilize free inmate labor to accomplish the move.

    
    

13. By letter dated December 22, 1993, the Department advised Petitioners of its intention to award Lease No. 700:0674 to Gulf.

    
    

14. Thereafter, Petitioners filed the protest that is the subject of the instant proceeding.

    
    

    CONCLUSIONS OF LAW

    
    

15. With certain exceptions not applicable to the instant cases, state agencies may lease space in privately owned buildings only through the process of competitive bidding. Section 255.25, Fla. Stat.

16. It has been said on more than one occasion that competitive bidding requirements, such as those imposed upon state agencies, have as their purpose and object the following:

    
    

    [T]o protect the public against collusive contracts; to secure fair competition upon equal terms to all bidders; to remove not only collusion but temptation for collusion and opportunity for gain at public expense; to close all avenues to favoritism and fraud in various forms; to secure the best values for the [public] at the lowest possible expense;

    and to afford an equal advantage to all desiring to do business with the [government], by affording an opportunity for an exact comparison of bids.

    
    

    Wester v. Belote, 103 Fla. 976, 138 So. 721, 723-24 (Fla. 1931); Harry Pepper & Associates, Inc. v. City of Cape Coral, 352 So.2d 1190, 1192 (Fla. 2d DCA 1977).

    
    

17. In soliciting and accepting competitive bids, a state agency has wide discretion. See D.O.T. v. Groves-Watkins Constructors, 530 So.2d 912, 913 (Fla. 1988); Liberty County v. Baxter's Asphalt & Concrete, Inc., 421 So.2d 505, 507 (Fla. 1982).

    
    

18. Its discretion with respect to these matters, while broad, is not unbridled. It must exercise its discretion in a manner that is not illegal, dishonest, fraudulent, arbitrary, unreasonable, capricious or in any other way that would subvert or undermine the purpose and object of competitive bidding. See D.O.T. v. Groves-Watkins Constructors, 530 So.2d 912, 913-14 (Fla. 1988); Caber Systems v. Department of General Services, 530 So.2d 325, 336 (Fla. 1st DCA 1988); Couch Construction Company, Inc. v. Department of Transportation,

    361 So.2d 172, 175 (Fla. 1st DCA 1978); Wood-Hopkins Contracting Company v. Roger J. Au & Son, Inc., 354 So.2d 446, 450 (Fla. 1st DCA 1978).

    
    

19. If the agency fails to exercise its discretion in this fashion, an adversely affected bidder or prospective bidder may file a protest with the agency pursuant to Section 120.53(5), Florida Statutes, which provides in pertinent part as follows:

    
    

    An agency which enters into a contract pursuant to the provisions of . . . chapter 255 . . . shall adopt rules specifying procedures for the resolution of protests arising from the contract

    bidding process. Such rules shall at least provide that:

    1. The agency shall provide notice of its decision or intended decision concerning a bid solicitation or contract award as follows:

       1. For a bid solicitation, notice of a decision or intended decision shall be given by United States mail or by hand delivery.

       * * *

       
       

       3. For any other agency decision, notice of a decision or intended decision shall be given either by posting the bid tabulation at the location where

       bids were opened or by certified United States mail or other express delivery service, return receipt requested.

       
       

       The notice required by this paragraph shall contain the following statement: "Failure to file a protest within the time prescribed in s. 120.53(5), Florida Statutes, shall constitute a waiver of proceedings under chapter 120, Florida Statutes."

       
       

    2. Any person who is adversely affected 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. With respect to a protest of the specifications contained in an invitation to bid or in a request for proposals, the notice of protest shall be filed in writing within 72 hours after the receipt of notice of the project plans and specifications or intended project plans and specifications in an invitation to bid or a request for proposals, and the formal written protest shall be filed within 10 days after the date the notice of

       protest is filed. 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.

       * * *

       
       

       1. The agency, on its own initiative or upon the request of a protestor, shall provide an opportunity to resolve the protest by mutual agreement between the parties within 7 days, excluding Saturdays, Sundays, and legal holidays, of receipt of a formal written protest.

          * * *

          
          

          2. If the subject of a protest is not resolved by mutual agreement within 7 days, excluding Saturdays, Sundays, and legal holidays, of receipt of the formal written protest, and if there is a disputed issue of material fact, the agency shall refer the protest to the [D]ivision [of Administrative Hearings] for proceedings under s. 120.57(1).

          
          

       2. Upon receipt of a formal written protest referred pursuant to this subsection, the division director shall expedite the hearing and assign a hearing officer within 15 days of the receipt of the formal written protest by the division and render a recommended order within 30 days after the hearing or within 30 days after receipt of the hearing transcript by the hearing

       officer, whichever is later. The provisions of this paragraph may be waived upon stipulation of all parties.

       
       

20. In a bid protest proceeding, "[t]he hearing officer's sole responsibility is to ascertain whether the agency acted fraudulently, arbitrarily, illegally, or dishonestly." See D.O.T. v. Groves-Watkins Constructors, 530 So.2d 912, 914 (Fla. 1988).

    
    

21. "The Hearing Officer need not, in effect, second guess the members of the evaluation committee to determine whether he and/or other reasonable and well-informed persons might have reached a contrary result. Rather, a 'public body has wide discretion' in the bidding process and 'its decision, when based on an honest exercise' of the discretion, should not be overturned 'even if reasonable persons may disagree.'" Scientific Games, Inc. v. Dittler Brothers, Inc., 586 So.2d 1128, 1131 (Fla. 1st DCA 1991).

    
    

22. Petitioners have failed to demonstrate that the Department's preliminary decision to award Lease No. 700:0674 to Gulf was the product of anything other than an honest exercise of the Department's discretion that, in all material respects, was in accordance with the provisions of the RFP.

    
    

23. To the extent that Petitioners are challenging the provisions of the RFP relating to the evaluation of bids, their challenges come too late because they were not made within the 72-hour time limit prescribed by Section 120.53(5), Florida Statutes. See Capeletti Brothers, Inc. v. Department of Transportation, 499 So.2d 855, 857 (Fla. 1st DCA 1986). Furthermore, Petitioners have not shown that the outcome of the bid evaluation process would have been any different had the evaluation criteria utilized by the Department been modified as Petitioners now, belatedly, suggest they should have been.7

    
    

24. Inasmuch as it has not been shown that the Department acted "fraudulently, arbitrarily, illegally, or dishonestly" in preliminarily deciding to award Gulf Lease No. 700:0674, the award should stand.

RECOMMENDATION

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

RECOMMENDED that the Department of Corrections enter a final order awarding Lease No. 700:0674 to Gulf over the protest of Petitioners.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 14th day of March, 1994.

STUART M. LERNER

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 14th day of March, 1994.

ENDNOTES

1/ Paragraphs 11. and 12. of the Department's motion read as follows:

1. Finally, Petitioner also questions the Department's failure to account for moving costs in awarding the lease. However, moving costs were not a criteria for evaluating bids.

2. If Petitioner wanted to challenge the lack of any criteria for moving costs it had to do so within 72 hours of receipt of the request for proposals, and cannot now raise this issue in a protest of the bid award. Failure to protest a term or specification contained in a bid within 72 hours or receipt of the bid package constitutes a waiver of a Petitioner[s'] right to challenge such term or specification. Florida Statutes, Section 120.53(5)(b); Capeletti Brothers, Inc. v. Department of Transportation, 499 So.2d 855, 857 (Fla. 1st DCA 1986).

2/ There are other tenants, in addition to the Department, occupying space Petitioners' building.

3/ Among the "environmental factors" that would impact upon "the efficient and economical conduct of Departmental operations planned for the requested space" are those relating to the safety and security of those individuals who would be utilizing such space.

4/ Section 22-60 of the City of Fort Pierce Zoning Code provides that the "off- street parking requirement" for "shopping centers, notwithstanding other commercial parking standards," is "one space for each 200 square feet of gross floor area." It is impossible, however, for the Hearing Officer to determine with any degree of certainty whether Gulf, because its plaza currently has only

117 on-site parking spaces, is in violation of this "off-street parking requirement." Such a determination cannot be made inasmuch as only an excerpt of Section 22-60, and no other portion of the Code, has been made a part of the record in this case. Cf. State v. Hayes, 240 So.2d 1, 3 (Fla. 1970)("in construing a statute to ascertain the intention of the Legislature, the statute should be construed as a whole or in its entirety, and the legislative intent gathered from the entire statute rather than from any one part thereof"); Rinker Materials Corporation v. City of North Miami,, 286 So.2d 552, 553 (Fla. 1973)("[m]unicipal ordinances are subject to the same rules of construction as are state statutes"). Moreover, even if such a violation did currently exist, there is nothing in the record to suggest that Gulf would not be able to increase the amount of "off-street" parking available to those using the plaza to meet the Code's "off-street parking requirement."

5/ As noted above, zoning requirements were discussed in paragraph 12.c) of Section A. of the RFP, which provided as follows:

Proposed use of this building must meet required zoning. Bidder must provide proof of zoning if requested.

There has been no showing made that the Department's use of the space offered by Gulf as a probation and parole office would violate any applicable zoning requirements.

6/ While Petitioners claim that Gulf will be unable to provide the Department with the 30 off-street, "exclusive use" parking spaces specified in the RFP

without violating zoning requirements, the record is insufficient to support such a finding.

7/ Although the record evidence establishes that there would be some costs involved in relocating the Department's St. Lucie County probation and parole office from Petitioners' property to Gulf's plaza, there has been no showing that, if such relocation costs had been taken into consideration by the Department, as Petitioners argue they should have been pursuant to Rule 60H- 1.015(5)(b), Florida Administrative Code, Petitioners, and not Gulf, would have been deemed to have submitted the lowest bid.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 94-0074BID

The following are the Hearing Officer's specific rulings on the "findings of facts" proposed by the parties in their post-hearing submittals:

Petitioners' Proposed Findings

1-2. Accepted and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order.

3. To the extent that this proposed finding suggests that Petitioners' protest was filed in a "timely" manner, it has been rejected as a finding of fact because it is more in the nature of legal argument than a finding of fact. Otherwise, it has been accepted and incorporated in substance.

4-6. Accepted and incorporated in substance.

1. First sentence: Accepted and incorporated in substance; Second sentence: Rejected as a finding of fact because it is more in the nature of a summary of testimony than a finding of fact.

2. Rejected because of the lack of competent substantial supporting evidence.

3. First sentence: Rejected as a finding of fact because it is more in the nature of a statement of the law than a finding of fact; Remaining sentences: Accepted and incorporated in substance.

The Department's Proposed Findings

1. Accepted and incorporated in substance.

2. To the extent that this proposed finding suggests that, according to the RFP, the net square footage required was 5,748 "(+/- 3 percent)" (as opposed to merely + 3 percent), it has been rejected because of a lack of competent substantial supporting evidence. Otherwise, it has been accepted and incorporated in substance.

3-6. Accepted and incorporated in substance.

7. To the extent that this proposed finding suggests that the award made to Gulf was final, it has been rejected because of a lack of competent substantial supporting evidence. Otherwise, it has been accepted and incorporated in substance.

8-14. Accepted and incorporated in substance.

1. To the extent that this proposed finding states that the "more definite statement" was filed on January 18, 1994, (as opposed to January 19, 1994,) it has been rejected because of a lack of competent substantial supporting evidence.

2. First sentence: To the extent that this proposed finding suggests that none of the evaluation criteria encompassed security-related issues, it has been rejected because of a lack of competent substantial supporting evidence.

To the extent that it makes reference to the Department's objections at hearing "to Jacobson's claims about security," it has not been incorporated in this Recommended Order because it would add only unnecessary detail thereto; Second sentence: Rejected as a finding of fact because it is more in the nature of legal argument than a finding of fact.

17-22. Accepted and incorporated in substance.

1. To the extent that this proposed finding suggests that none of the evaluation criteria encompassed security-related issues, it has been rejected because of a lack of competent substantial supporting evidence. Otherwise, it has been accepted and incorporated in substance.

2. First sentence: Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer; Second sentence: Rejected as a finding of fact because it is more in the nature of a summary of testimony than a finding of fact.

3. First sentence: Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer; Second sentence: Rejected as a finding of fact because it is more in the nature of argument regarding the weight to be given certain testimony than a finding of fact.

4. Rejected as a finding of fact because it is more in the nature of legal argument than a finding of fact.

5. First sentence: To the extent that this proposed finding suggests that none of the evaluation criteria encompassed security-related issues, it has been rejected because of a lack of competent substantial supporting evidence. Otherwise, it has been accepted and incorporated in substance; Second sentence: Rejected as a finding of fact because it is more in the nature of legal argument than a finding of fact.

6. Rejected as a finding of fact because it is more in the nature of legal argument than a finding of fact.

7. Rejected as a finding of fact because it constitutes argument regarding the state of the evidentiary record.

8. First sentence: Rejected as a finding of fact because it is more in the nature of a summary of testimony than a finding of fact; Second sentence: Accepted and incorporated in substance.

31-32. Accepted and incorporated in substance.

1. Rejected as a finding of fact because it is more in the nature of argument regarding the weight to be given certain testimony than a finding of fact.

2. Rejected as a finding of fact because it is more in the nature of legal argument than a finding of fact.

3. Accepted and incorporated in substance.

4. Rejected as a finding of fact because it is more in the nature of argument regarding the weight to be given certain testimony than a finding of fact.

5. First sentence: To the extent that this proposed finding suggests that none of the evaluation criteria encompassed security-related issues, it has been rejected because of a lack of competent substantial supporting evidence.

   To the extent that this proposed finding states that any testimony regarding security-related issues was "irrelevant," it has been rejected as a finding of fact because it is more in the nature of legal argument than a finding of fact; Second sentence: Rejected as a finding of fact because it constitutes argument regarding the state of the evidentiary record.

6. Rejected as a finding of fact because it is more in the nature of argument regarding the weight to be given certain testimony than a finding of fact.

39-41. Accepted and incorporated in substance.

1. Rejected as a finding of fact because it constitutes argument regarding the state of the evidentiary record.

2. Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

3. Rejected as a finding of fact because it is more in the nature of a summary of testimony than a finding of fact.

4. First sentence: Accepted and incorporated in substance; Second sentence: Rejected as a finding of fact because it is more in the nature of a summary of testimony than a finding of fact.

5. Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

47-48. Accepted and incorporated in substance.

1. Rejected as a finding of fact because it is more in the nature of a summary of testimony than a finding of fact.

2. Rejected as a finding of fact because it is more in the nature of argument regarding the weight to be given certain evidence than a finding of fact.

3. First sentence: Rejected as a finding of fact because it is more in the nature of a summary of testimony than a finding of fact; Second sentence: Rejected as a finding of fact because it is more in the nature of argument regarding the weight to be given certain evidence than a finding of fact.

4. Accepted and incorporated in substance.

5. First sentence: Accepted and incorporated in substance; Second sentence: Rejected as a finding of fact because it is more in the nature of legal argument than a finding of fact.

54-55. Rejected as findings of fact because they constitute argument regarding the state of the evidentiary record.

1. First sentence: Rejected as a finding of fact because it is more in the nature of a summary of testimony than a finding of fact; Second sentence: Rejected as a finding of fact because it constitutes argument regarding the state of the evidentiary record.

2. Rejected as a finding of fact because it is more in the nature of argument regarding the weight to be given certain testimony than a finding of fact.

58-61. Rejected as findings of fact because they are more in the nature of summaries of testimony than findings of fact.

62-63. Rejected as findings of fact because they are more in the nature of legal argument than findings of fact.

64-65. Rejected as findings of fact because they are more in the nature of argument regarding how the City of Fort Pierce Zoning Code should be interpreted.

1. Before comma: Rejected because it is more in the nature of a summary of testimony than a finding of fact; After comma: Rejected because it is more in the nature of argument regarding the sufficiency of Petitioners' proof.

2. Rejected as a finding of fact because it is more in the nature of argument regarding the weight to be given certain evidence than a finding of fact.

3. To the extent that this proposed finding states that "the January 24 letter is hearsay," it has been rejected as a finding of fact because it is more in the nature of legal argument than a finding of fact. Otherwise, it has been rejected because it constitutes argument regarding the state of the evidentiary record.

4. Rejected as a finding of fact because it is more in the nature of argument regarding the weight to be given certain testimony than a finding of fact.

5. First sentence: Rejected as a finding of fact because it is more in the nature of argument regarding the weight to be given certain testimony than a finding of fact; Second sentence: Rejected as a finding of fact because it is more in the nature of legal argument than a finding of fact.

6. Fourth sentence: Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer; Remaining sentences: Accepted and incorporated in substance.

7. First sentence: Accepted and incorporated in substance; Second sentence: To the extent that this proposed finding indicates that "[e]ach of the evaluators made a good faith and honest evaluation of the proposals," it has been accepted and incorporated in substance.

8. Rejected as a finding of fact because it is more in the nature of a summary of testimony than a finding of fact.

COPIES FURNISHED:

Donald E. Jacobson Post Office Box 3430

Fort Pierce, Florida 34946

Norman L. Paxton, Jr., Esquire Paxton & Williams

606 Boston Avenue

Fort Pierce, Florida 34950

Steven S. Ferst, Esquire Office of the General Counsel Department of Corrections 2601 Blair Stone Road

Tallahassee, Florida 32399-2500

Louis A. Vargas, Esquire General Counsel Department of Corrections 2601 Blair Stone Road

Tallahassee, Florida 32399-2500

Harry K. Singletary, Jr., Secretary Department of Corrections

2601 Blair Stone Road Tallahassee, Florida 32399-2500

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 of time 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: 94-000074BID

Orders for Case No: 94-000074BID