STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

J C & C ASSOCIATES, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 94-3955BID

)

DEPARTMENT OF LOTTERY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above-styled matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Don W. Davis, on August 9, 1994 in Tallahassee, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Curley R. Doltie, Esquire

1103 Hays Street Post Office Box 1325

Tallahassee, Florida 32302

For Respondent: Louisa Warren, Esquire

Department of Lottery

250 Marriot Drive, Capitol Complex Tallahassee, Florida 32399-4011

ISSUE

Whether Respondent has acted acted fraudulently, arbitrarily, capriciously, illegally, or dishonestly with regard to the intended award of ITB 93/94-040- LOT/P.

FINDINGS OF FACT

1. By correspondence filed July 18, 1994, this bid protest was referred to the Division of Administrative Hearings from the Department of Lottery for the conduct of formal proceedings pursuant to Section 120.53(5), Florida Statutes. The formal bid protest document consists solely of a single page letter signed by Petitioner's president, C. Whitside-Curry, basically stating that the letter is to serve as Petitioner's formal written protest to Respondent's "Notice of Award - Notice of Non-Responsiveness - ITB 93/94-040-LOT/P - Invitation To Bid for Painting the Interior of the Lottery Central Building.

   
   

2. Final hearing in the matter was scheduled for August 2, 1994, in compliance with requirements of Section 120.53(5)(e), Florida Statutes, that bid protests be set for hearing within 15 days absent stipulation of the parties waiving that statutory time frame.

3. By motion filed July 29, 1994, counsel for Petitioner sought a continuance of the final hearing for a period of one week. Counsel had just been retained by Petitioner.

   
   

4. As reflected in Petitioner's motion, counsel's request for a one week delay was acceptable to counsel for Respondent, provided that:

   
   

   1. the 30 day time frame governing issuance of recommended orders in bid challenge cases was not waived.

   2. that deposition of a principal of Petitioner, C. Whitside-Curry, be held on August 3, 1994 at 11:30 a.m. and that certain documents also be produced.

      
      

5. A telephone hearing on Petitioner's continuance motion was held on August 1, 1994, to clarify the hearing officer's understanding that a one week continuance of the final hearing would not subtract a period of one week from the 30 day time frame following the final hearing within which to prepare a recommended order in the case. Thereafter the motion was granted and final hearing rescheduled, as agreed in the telephone conference, for August 9, 1994, one week after the initial hearing date.

   
   

6. By notice filed on August 3, 1994 (transmitted to Petitioner's counsel by facsimile transmission on July 29, 1994), Respondent documented the agreed upon deposition of C. Whitside-Curry and documents to be produced.

   
   

7. By motion filed on August 3, 1994, subsequent to Respondent's notice, Petitioner's counsel sought a further continuance of the final hearing and noticed the unavailability of Petitioner's principal, C. Whitside-Curry, for the scheduled deposition on August 3 or the final hearing scheduled for August 9, 1994.

   
   

8. By motion filed on August 3, 1994, subsequent to Petitioner's second motion for continuance, Respondent moved for imposition of sanctions, including the dismissal of the bid protest on the basis that Petitioner had not complied with conditions agreed to by the parties as a part of the one week continuance, i.e., C. Whitside-Curry did not appear for deposition and documents were not produced. The motion further related that Respondent's notice of the deposition and request to produce documents (filed on August 3, 1994) had been transmitted, as noted above, to Petitioner's counsel by facsimile transmission on July 29, 1994.

   
   

9. In the course of telephone conference with the parties on August 8, 1994, Petitioner's counsel agreed to payment of costs related to court reporter expense incurred by Respondent at the deposition where Petitioner's principal failed to appear. Respondent's counsel refused to consent to further continuance of the final hearing and Petitioner's request for a second continuance was denied.

   
   

10. At final hearing, consideration was given to an Petitioner's Amended Second Motion For Continuance. The motion differed from previous motions to the extent that an attached copy of a letter dated April 21, 1994, appeared to indicate that a mediation meeting in another legal proceeding required the Petitioners' presence in Tampa, Florida, on the afternoon of August 9, 1994. No direct admissible evidence of Petitioner's inability to attend the hearing was

    presented. Upon denial of the amended motion for continuance, counsel for Petitioner announced that he could not go forward.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding, and the parties thereto, pursuant to Section 120.53(5)(e), and Section 120.57(1), Florida Statutes.

    
    

12. Absent stipulation by all parties, Section 120.53(5)(e), Florida Statutes, mandates that bid protest proceedings must be conducted within 15 days of receipt of the formal written protest by DOAH. In the instance case, waiver of the time frame for the period of one week by the referring agency, conditioned upon the occurrence of very specific events, is not viewed as a bar to the agency's refusal to consent to further continuance and insist, absent direct admissible proof of Petitioner's scheduling difficulties, that the final hearing be held.

    
    

13. The brevity of the formal bid protest document in this proceeding also fails to comply with requirements of Rule Section 60Q-2.004, Florida Administrative Code, and gives no indication of the disputed material fact at issue, a precondition for referral of bid disputes to the Division. Section 120.53(5)(d)2., Florida Statutes.

    
    

14. In the absence of presentment of proof, or proffer of same by counsel for Petitioner, that the referring agency has acted fraudulently, arbitrarily, capriciously, illegally, or dishonestly in finding Petitioner's bid response to be nonresponsive, the bid protest should be dismissed. Department of Transportation v. Groves-Watkins Constructors, 530 So.2d 912 (Fla. 1988).

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the formal bid protest filed in response to Respondent's

intent to award ITB 93/94-040-LOT/P, be DISMISSED.

DONE AND ENTERED this 10th day of August, 1994, in Tallahassee, Leon County, Florida.

DON W. 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 10th day of August, 1994.

COPIES FURNISHED:

Curley R. Doltie, Esquire 1103 Hays Street

P.O. Box 1325

Tallahassee, Florida 32302

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 consult with the agency that will issue the final order in this case concerning their 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.

=================================================================

DISTRICT COURT OPINION

=================================================================

IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA

J C & C ASSOCIATES, INC., NOT FINAL UNTIL TIME EXPIRES TO

FILE MOTION FOR REHEARING AND

Petitioner, DISPOSITION THEREOF IF FILED

vs. CASE NO. 94-3185

DOAH CASE NO. 94-3955BID

DEPARTMENT OF LOTTERY,

Respondent.

/

Opinion filed January 22, 1996.

An Appeal from Order of the Department of Lottery. Curley R. Doltie, Tallahassee, for Appellant.

Louisa H. Warren of Department of the Lottery, Tallahassee, for Appellee.

PER CURIAM.

AFFIRMED.

ALLEN and KAHN, JJ., and SMITH, SENIOR JUDGE, CONCUR.

MANDATE

From

DISTRICT COURT OF APPEAL OF FLORIDA FIRST DISTRICT

To the Honorable Don W. Davis, Hearing Officer

Division of Administrative Hearings WHEREAS, in that certain cause filed in this Court styled:

J C & C ASSOCIATES, INC.,

Petitioner,

vs. CASE NO. 94-3185

DOAH CASE NO. 94-3955BID

DEPARTMENT OF LOTTERY,

Respondent.

The attached opinion was rendered on January 22, 1996.

YOU ARE HEREBY COMMANDED that further proceedings be had in accordance with said opinion, the rules of this Court and the laws of the State of Florida.

WITNESS the Honorable E. Earle Zehmer

Chief Judge of the District Court of Appeal of Florida, First District and the Seal of said court at Tallahassee, the Capitol, on this 11th day of March, 1996.

(SEAL)

Jon S. Wheeler

Clerk, District Court of Appeal of Florida, First District

Docket for Case No: 94-003955BID

Orders for Case No: 94-003955BID