STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SON-MAR SOUTH SANITATION, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 94-5488BID

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent, )

and )

) INDUSTRIAL WASTE SERVICE, INC., )

)

Intervenor. )

)

RECOMMENDED ORDER

Pursuant to written notice, a formal hearing was held in this case before Errol H. Powell, a duly designated Hearing Officer of the Division of Administrative Hearings, on December 13, 1994.

APPEARANCES

For Petitioner: Stuart M. Silverman, Esquire

Damsel & Gelston, P.A. Post Office Box 4507

West Palm Beach, Florida 33401-4507

For Respondent: Colleen A. Donahue, Esquire

Department of Health and Rehabilitative Services

District 10 Legal Office

201 West Broward Boulevard, Suite 502 Fort Lauderdale, Florida 33301-1885

For Intervenor: Matthew E. Morrall, Esquire

MATTHEW E. MORRALL, P.A.

International Building, Penthouse West 2455 East Sunrise Boulevard

Fort Lauderdale, Florida 33304 STATEMENT OF THE ISSUES

The ultimate issue for determination at formal hearing was whether the intended action by the Department of Health and Rehabilitative Services to award Bid # 595-594 to Industrial Waste Service, Inc., for waste disposal services at South Florida State Hospital departs from the essential requirements of law.

PRELIMINARY STATEMENT

In April 1994, the Division of Health and Rehabilitative Services (HRS) published an Invitation To Bid (ITB), Bid # 595-594, for the award of waste disposal services for South Florida State Hospital (Hospital). In May 1994, when the bids were opened, Son Mar South Sanitation, Inc. (SON MAR), was the apparent lowest bidder and Industrial Waste Service, Inc. (IWS), was the apparent second lowest bidder.

IWS filed a protest contending that SON MAR was ineligible because it did not have a license or permit to operate in the City of Pembroke Pines (City) where the Hospital was located and because IWS had an exclusive contract with the City for waste disposal. Through an informal process with IWS, HRS resolved IWS' protest by agreeing to afford SON MAR an opportunity to obtain an occupational license from the City within a specified time period, and if SON MAR were unable to obtain the occupational license, the bid would be awarded to IWS. The City refused to grant SON MAR an occupational license, so SON MAR could not comply with the prescribed condition of obtaining an occupational license. Subsequently, HRS notified bidders of its intent to award the bid to IWS in a letter dated July 29, 1994.

By letter dated August 9, 1994, SON MAR filed a notice of protest. By petition dated August 22, 1994, SON MAR filed its formal bid protest alleging, inter alia, that its bid was the lowest and responsive bid, that it had all capabilities of performing the contract and that its failure, through no fault of its own, to possess an occupational license from the City, was a minor irregularity and, therefore, it should be awarded the bid.

On October 5, 1994, this matter was referred to the Division of Administrative Hearings. The parties waived the statutory time limit for conducting a final hearing. By Order dated October 20, 1994, IWS was granted intervenor status. A formal hearing was scheduled pursuant to written notice. The parties filed a joint prehearing stipulation.

At the hearing, SON MAR presented the testimony of two witnesses, HRS presented the testimony of one witness and IWS presented the testimony of one witness. The parties entered thirty-two joint exhibits into evidence.

A transcript of the formal hearing was ordered. At the request of the parties, the time for filing posthearing submissions was set for more than ten days following the filing of the transcript. Subsequently, an extension of time was granted. All parties submitted proposed findings of fact which are addressed in the appendix to this recommended order.

FINDINGS OF FACT

1. On November 16, 1988, Industrial Waste Service, Inc. (IWS), obtained approval to provide garbage and trash collection services to the City of Pembroke Pines (City) when the City passed and adopted Resolution No. 1876 approving the assignment of the contract for such services between the City and Citywide Sanitation Company, Inc. (Citywide), to IWS. Citywide's contract was to expire June 30, 1993.

   
   

2. On November 6, 1991, the city amended Chapter 112 of its Code and passed and adopted a solid waste franchise ordinance, called the "City Solid Waste Franchise Ordinance," Ordinance No. 975, effective November 6, 1991. The Ordinance provides in pertinent part:

   Sec. 112.39 FRANCHISE REQUIRED TO OPERATE; RESTRICTIONS ON OPERATING IN THE CITY; AWARD OF FRANCHISE

   1. It shall be unlawful to commence or engage in the business of collecting and disposing of solid waste originating in the

      city without a franchise issued by the franchising authority in accordance with the provisions of this subchapter.

   2. It shall be unlawful for any hauler operating in the city to dispose of solid waste collected in the city at any location other than to the Resource Recovery System transfer station or facilities designated in the plan of operation under the Solid Waste Disposal Agreement, as defined in section 94.22 of the code, the City's Flow Control Ordinance. (Underscore and strike through omitted)

      
      

3. On February 13, 1992, the City and IWS entered into a "Solid Waste Collection & Disposal Agreement" (Agreement). The Agreement provides in pertinent part:

   
   

   2. DEFINITIONS

   Contract Collection Area shall include all of the City of Pembroke Pines, Florida, as the boundaries of said City shall exist at all times during the life of this Contract.

   * * *

   4. TERM & EFFECTIVE DATE

   The term of this Contract shall be for a five (5) year period beginning February 1. 1992 and termi- nating January 31, 1997. This Agreement shall

   become effective upon execution by the parties hereto.

   
   

4. On April 1, 1992, the Agreement was amended, "First Amendment to Solid Waste Collection & Disposal," which provides in pertinent part.

   
   

   1. DEFINITIONS

      * * *

      Commercial Service shall mean the collection and disposal of Garbage, trash, Solid Waste and Processable Waste for all Business, Commercial, Industrial, hospital, school, governmental and quasi-governmental establishments, including the collection and disposal of Construction and Demolition Debris.

      * * *

      Processable Waste shall mean that portion of Waste Stream that is capable of being processed in the Corporation's resource recovery and compost facility, including but not limited to materials which are recyclable and all acceptable Waste other than Non- Processable Waste (as defined herein).

      * * *

      Solid Waste shall mean all waste accumulations consisting of garbage, residential/household trash,

      commercial/business trash and construction and demolition debris, including but limited to all materials which are recyclable.

      * * *

   2. CONTRACTOR'S RIGHTS

   (D) The City further grants to Contractor the exclusive right to service all Residential Curbside, Apartment, Condominium, Business, Industrial, and Commercial establishments that are certified for occupancy after February 1, 1992, provided, however, a certificate of occupancy issued as a result of remodeling with no change in ownership shall not require the owner to change service to the Contractor except for the Solid Waste (i.e. Construction Demolition and Debris) created thereby.

   * * *

   1. The City grants to the Contractor the exclusive right to provide Solid Waste collection and disposal services to any Residential Apartment, Business, Commercial or Industrial establishments for the following customers as of February 1, 1992:

      1. For CONTRACTORS's existing customers; and

      2. For customers that have a change in ownership after the City's approval of the Agreement; and

      3. For customers which received Solid Waste collection and disposal services in the City prior to the City's approval of the Agreement and whose contract for such services expires and is not renewed with the same provider in the future. (Underscore and strike through omitted)

         
         

5. On November 4, 1992, the City passed and adopted an ordinance, Ordinance No. 1016, amending Chapter 94 of its Code providing for a new subchapter entitled "Garbage Collection" and providing new sections. The Ordinance provides in pertinent part:

   
   

   Sec. 94-10 Agreement with Private Collector.

   1. The City acting by and through its City Commission, and in accordance with the provisions of Section 112.37 through 112.41 of the Code, approved a Solid Waste Collection & Disposal Franchise Agreement dated January 15, 1992, as amended by the First Amendment dated April 1, 1992 ("Agreement") between the City and Industrial Waste Service Inc. ("Collector").

   2. All providers of Solid Waste collection and disposal services other than Collector who provide such services within the City boundaries shall be referred to herein as "Haulers". All terms not otherwise defined in this Subchapter shall have the meaning ascribed thereto in the Agreement. The Agreement is specifically made a part hereof as Appendix A, and a copy of same will be maintained at the City Clerk's Office at City Hall.

   3. Pursuant to the Agreement the City has granted the Collector the following rights and obligations to provide Solid Waste collection and disposal services:

      * * *

      1. The exclusive right and obligation to provide solid waste collection and disposal services within the City boundaries, present and future, for all Residential Curbside, and

         all Apartment, Condominium, Business, Industrial and Commercial establishments that are certified for occupancy after February 1, 1992, and govern- mental establishments to the extent permitted by law, provided, however, that a certificate of occupancy issued as a result of remodeling with no change in ownership of the property shall not

         require the Customer to change to Collector except for construction/remodeling demolition and debris created thereby; and

      2. The exclusive right and obligation to provide solid waste collection and disposal services within the City boundaries for all construction or remodeling demolition and debris within the City; and

      3. As of February 1, 1992, the exclusive right and obligation to provide solid waste collection and disposal services within the City boundaries for; [sic] Collector's existing Customers; Customers/property owners in the City that have a change in ownership; and customers/property owners whose contract for solid waste collection and disposal services expires and is not renewed with the same provider.

      Sec. 94.14 Certain Acts Prohibited.

      * * *

      (C) It shall be a violation of this subchapter for any person, firm, corporation or other entity, other than Collector to collect and/or dispose of Solid Waste originating in the City except to the extent the same is specifically permitted by the terms of this subchapter. (Underscore and strike through omitted)

      
      

6. By letter dated June 10, 1992, IWS notified South Florida State Hospital that it (IWS) was the exclusive contractor for solid waste collection and disposal.

   
   

7. South Florida State Hospital (Hospital) is a state mental health treatment facility operated and administered by the Division of Health and Rehabilitative Services (HRS) pursuant to Chapter 394, Florida Statutes. The Hospital is located on state property and is situated within the city limits of the City of Pembroke Pines (City), Broward County, Florida.

   
   

8. In December 1993, HRS published an Invitation To Bid (ITB) on Bid # 595-591 for waste disposal services at the Hospital. Browning Ferris Industries, IWS, and Southern Sanitation Service submitted bids.

9. On December 8, 1993, a pre-bid conference was held which included an opportunity for questions and answers. At this conference, HRS pointed out, among other things, that the City had an exclusive contract with IWS for waste disposal services but it (HRS) was also obligated by Florida Statutes to ensure the bidding remained competitive and that all waste collected from the Hospital had to be deposited at land fill sights designated by the City.

   
   

10. In or around January 1994, HRS notified the bidders of Bid # 595-591 that, due to the bid document being flawed, a contract would not be awarded. All the bidders filed protests but none raised the City's exclusive contract with IWS as an issue. Ultimately, the contract was awarded to IWS but for only a six-month period.

    
    

11. In April 1994, HRS published another ITB on Bid # 595-594 for waste disposal services at the Hospital. In the section entitled "SECTION A. INTRODUCTION," the ITB provides in pertinent part:

    
    

    1. STATEMENT OF NEED

       [T]he department requires the services of a qualified waste disposal company to provide waste disposal services to maintain sanitary conditions essential to the health, safety and well being of residents and staff living and working at the hospital.

       
       

    2. STATEMENT OF PURPOSE

    Pursuant to Florida Statutes, Chapter 287, this Invitation to Bid is being issued by the State

    of Florida, Department of Health and Rehabilitative Services, South Florida State Hospital, to obtain the services of a suitably qualified provider to enter into a contract for the removal and disposal of garbage from the hospital campus, and related services; in keeping with hospital requirements

    and the waste flow control ordinance of the City of Pembroke Pines.

    
    

12. In the section "SECTION B. ITB SPECIFICATIONS: MINIMUM DEPARTMENTAL REQUIREMENTS," the ITB provides in pertinent part:

    
    

    1. PROGRAMMATIC REQUIREMENTS

       1. Method of Service Delivery

          13) The provider will dispose of waste collected from the hospital at disposal site(s) specified by the City of Pembroke Pines, in keeping with the city's waste flow control ordinance.

          * * *

       2. Other Special Requirements

       * * *

       2) Bidders Eligibility Requirements

       The successful bidder, in order to contract with the department to provide the services requested by this Invitation to Bid, must have all licenses and/or permits in accordance with city and county

       ordinances, rules, regulations, and provisions. All licenses and/or permits must be obtained at provider's expense. All costs for tests and inspections shall be paid for by the provider.

    2. GENERAL INFORMATION

       * * *

       1. Acceptance of Bids

    [T]he department reserves the right to reject any or all bids or waive minor irregularities when to do so would be in the best interest of the State of Florida. Minor irregularities are those which will not have a significant adverse

    effect on overall competition, cost or performance.

    
    

13. In the section entitled "SECTION E. BID EVALUATION CRITERIA AND BID TABULATION," the ITB provides in pertinent part:

    
    

    1) Evaluation Committee

    An evaluation committee of at lest three (3) members will be established to select the lowest responsive and qualified bidder.

    * * *

    3) Evaluation of Bids

    Following the bid opening, the committee will review bid packages, beginning with the lowest

    cost bid, for compliance with the ITB requirements.

    
    

    A Fatal Items Checklist (Appendix IX) will be used to evaluate all bid packages. All items on the checklist MUST be met in order for the proposal

    to be considered. Receipt of a "No" response for any item will result in automatic rejection of the bid.

    
    

    All references will be checked. Only bidders with a good record of satisfactory performance will be considered.

    
    

    The contract will be awarded to the lowest responsive and qualified bidder who meets all the criteria specified in this ITB.

    
    

14. The section entitled "General Conditions" of the ITB Contractual Services Bidder Acknowledgment form provides in pertinent part:

    
    

    7. AWARDS: As the best interest of the State

    may require, the right is reserved to make award(s) by individual service, group of services, all or none, or a combination thereof; to reject any and all bids or waive any minor irregularity or technicality in bids received. Bidders are cautioned to make no assumptions unless their bid has been evaluated as being responsive.

    
    

15. In response to the ITB, HRS received bids from Browning Ferris Industries which had previously bid on Bid # 595-591, Coastal Carting, Ltd., IWS which had also previously bid on Bid #595-591, Son Mar South Sanitation, Inc.

    (SON MAR), and Southern Sanitation Service which had also previously bid on Bid # 595-591. SON MAR was the apparent lowest bidder with a bid of $72,200.48 for the first year, $79,420.52 for the second year, and $87.362.57 for the third year, totalling $238.983.57, and IWS was the apparent second lowest bidder with a bid of $106,739.84 for the first year, $112,734.46 for the second year, and

    $121,971.12 for the third year, totalling $341,445.42. Subsequently, IWS' bid was recalculated due to HRS discovering a calculation error by IWS. The recalculation was performed without a reconvening of the Evaluation Committee and resulted in IWS' bid being $113,579.84 for the first year, $119,814.46 for the second year, and $129,291.12 for the third year, totalling $362,685.42.

    
    

16. The Evaluation Committee reviewed all the bids and evaluated them using, among other things, the Fatal Items Checklist. If one item in the checklist were not satisfied, a bid would be disqualified. Pertinent to this case, both SON MAR and IWS satisfied the Checklist and all other evaluation criteria used by the Committee.

    
    

17. On May 12, 1994, the Bid Tabulation sheet was posted. HRS indicated its intent to award Bid # 595-594 contract to SON MAR as the apparent lowest and responsive bidder. At that time, HRS was aware that SON MAR had no licenses or permits issued by the City. The Evaluation Committee considered the absence of a license or permit as not material to awarding the bid 1/ and were aware that an awardee obtaining a license or permit would involve a simple process of the awardee completing an application for and paying a fee to the City.

    
    

18. By letter dated May 20, 1994, HRS requested that the City advise it of any permits and/or licenses required by the City for an awardee to provide waste removal services to the Hospital. HRS did not receive a written response to its letter. Instead, the City orally advised HRS that it (the City) would issue SON MAR a special permit which would be issued upon SON MAR making application for an occupational license and paying a franchise fee. SON MAR was agreeable to complying with the City's terms and conditions.

    
    

19. SON MAR dispatched one of its representatives to the City to obtain an application for the license. However, the City refused to provide SON MAR an application.

    
    

20. By letter dated June 13, 1994, IWS filed its formal bid protest of Bid # 595-594 with HRS alleging, among other things, that SON MAR did not have a license from the City to provide waste removal services because it (IWS) had the exclusive waste removal contract with the City, that, without a license, SON MAR could not comply with the bid eligibility requirements and that, therefore, the bid should be awarded to it (IWS).

    
    

21. On or about June 28, 1994, SON MAR notified the City that its refusal to issue it (SON MAR) an occupational license was unconstitutional per a U.S. Supreme Court case and requested immediate issuance of the license. SON MAR forwarded HRS a copy of this notification and request.

    
    

22. By letter dated June 30, 1994, the City notified SON MAR that it would not issue it (SON MAR) a permit to provide waste removal services in the City, as such an action would violate the exclusive franchise agreement that it (the City) had with IWS.

    
    

23. On or about June 30, 1994, HRS was aware that the City would not permit SON MAR to provide waste removal services in the City as it received a copy of the City's letter to SON MAR.

24. On July 14, 1995, HRS and IWS settled the protest filed by IWS, without involving SON MAR in the negotiations. The terms of the settlement, which were communicated to SON MAR on July 15, 1995, were that IWS would dismiss its protest if, within ten days, 2/ SON MAR obtained a license/permit from the City, produced the license to HRS and otherwise remain qualified for the award and that, if SON MAR was unable to obtain a license from the City, HRS would declare SON MAR unqualified and declare IWS the lowest responsive and qualified bidder and award the bid to IWS.

    
    

25. SON MAR was unable to obtain a license from the City. Moreover, the City refused to provide SON MAR with an application, remaining consistent with its letter of June 30, 1994, to SON MAR.

    
    

26. As SON MAR was unable to obtain a license within the prescribed ten- day period, by letter dated July 29, 1994, HRS notified all bidders to Bid # 595-594 that it was declaring SON MAR unqualified and of its intent to award the bid to IWS, as the next lowest and qualified bidder. Further, HRS notified the bidders that the bids of IWS and another bidder were recalculated to correct a calculation error, which would not affect the order of the bids.

    
    

27. By letter dated August 9, 1994, SON MAR notified HRS of its intent to file a formal protest.

    
    

28. On or about August 24, 1994, SON MAR filed its formal protest.

    
    

29. At no time material hereto, has SON MAR pursued any civil action to challenge the validity of the exclusive contract between the City and IWS or the constitutionality of the City's Ordinance.

    
    

    CONCLUSIONS OF LAW

    
    

30. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and the parties thereto pursuant to Subsections 120.57(1) and 120.53(5), Florida Statutes. The parties were duly noticed for the formal hearing.

    
    

31. SON MAR, as challenger to HRS' intended action, must prove by a preponderance of the evidence that HRS' action is arbitrary or capricious, and not based upon facts reasonably tending to support its action. See, Baxter's Asphalt and Concrete, Inc. v. Department of Transportation, 475 So.2d 1284, 1286-87 (Fla. 1st DCA 1985), and Capeletti Brothers, Inc. v Department of General Services, 432 So.2d 1359 (Fla. 1st DCA 1983).

    
    

32. The case of Department of Transportation v. Groves-Watkins Construction, 530 So.2d 912, 914 (Fla. 1988), sets the parameters for review of a bid protest matter by a Hearing Officer:

    
    

    [A]lthough the APA provides the procedural mechanism for challenging an agency's decision

    to award or reject all bids, the scope of inquiry is limited to whether the purpose of competitive bidding has been subverted. In short, the hearing officer's sole responsibility is to ascertain whether the agency acted fraudulently, arbitrarily, illegally, or dishonesty.

    Furthermore, the First District Court of Appeal in Asphalt Pavers, Inc. v. Department of Transportation, 602 So.2d 558 (Fla. 1st DCA 1992), held that the principles in Groves-Watkins, supra, are not limited to situations in which all bids are rejected but are applicable to other bid situations. Consequently, the principles of Groves-Watkins, supra, are applicable to the case sub judice.

    
    

33. Also, in the analysis of competitive bidding, the Florida Supreme Court held in Liberty County v. Baxter's Asphalt & Concrete, Inc., 421 So.2d 505, 507 (Fla. 1982), that an agency's decision is accorded great deference:

    
    

    [A] public body has wide discretion in soliciting and accepting bids for public improvements and its decision, when based on an honest exercise

    of this discretion, will not be overtuned by a court even if it may appear erroneous and even if reasonable persons may disagree. (citations omitted)

    
    

34. The ITB for Bid # 595-594 (Bid) provides that the successful bidder must not only be the lowest bidder but also must be a qualified bidder who has met all requirements. SON MAR was the apparent lowest bidder and had met all the requirements but for one, i.e., it did not have an occupational license issued by the City. SON MAR contends that the absence of such license was not material and, therefore, could be waived. Whereas, HRS and IWS contend that the failure to have such a license was material and could not be waived.

    
    

35. Section 287.012, Florida Statutes, defines a qualified bidder as follows:

    
    

    (14) "Qualified bidder," "responsible bidder," "qualified offeror," or "responsible offeror" means a person who has the capability in all

    respects to perform fully the contract requirements and has the integrity and reliability which will assure good faith performances.

    
    

    Without the occupational license from the City, SON MAR could not perform the services pursuant to the Bid. As such, a license from the City was material to the performance of the Bid and could not be waived.

    
    

36. In July 1994 HRS afforded SON MAR an opportunity to obtain an occupational license from the City within a prescribed time period. Since such a license was material to the Bid, it was not unreasonable for HRS to afford SON MAR this opportunity. 3/

    
    

37. When SON MAR was unable to obtain an occupational license within the prescribed time period, it was not unreasonable for HRS to declare SON MAR unqualified and examine IWS, the next apparent lowest bidder. Not only was IWS the next apparent lowest bidder, but it was also a qualified bidder, having met all the requirements of the Bid, including possessing an occupational license from the City.

    
    

38. Hence, Petitioner has failed to demonstrate that HRS acted arbitrarily, or capriciously. 4/

39. Further, the argument by HRS and IWS is persuasive that the Hearing Officer does not have jurisdiction to decide the constitutionality of the City's ordinance and the invalidity of the City's exclusive contract with IWS.

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 awarding Bid # 595-594 to Industrial Waste Service, Inc.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 28th day of March 1995.

ERROL H. POWELL

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 28th day of March 1995

ENDNOTES

1/ Licensing requirement was not a Fatal Checklist item.

2/ The ten-day period was based upon the City's representation that a license is issued from a week to ten days after it receives an application.

3/ It is of no consequence that, before affording SON MAR this opportunity, HRS was aware that the City had informed SON MAR that it would not grant SON MAR an occupational license. Previously, the City had also informed SON MAR and HRS that it would grant SON MAR a special permit to perform the services in the Bid. Not to afford SON MAR an opportunity to satisfy a material requirement of the Bid would be unreasonable.

4/ HRS has available to it a less involved and complicated procedure for obtaining a waste disposal service contract. Subsection 287.057(3), Florida Statutes, provides for excepting from the bid requirements contractual services available only from a single source.

APPENDIX

The following ruling is made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact

1, 2 and 3. Partially accepted in finding of fact 7.

4, 5, 10, 11, 19, 28, 37, 49, 51-53 and 59. Rejected as being subordinate.

6 and 7. Partially accepted in finding of fact 6.

8 and 31. Rejected as being argument, or conclusion of law. 9, 13 and 14. Partially accepted in finding of fact 9.

12 and 15. Partially accepted in finding of fact 8.

16 and 17. Partially accepted in finding of fact 10.

18. Partially accepted in finding of fact 11.

20 and 33. Partially accepted in finding of fact 15.

21, 23 and 24. Partially accepted in finding of fact 13.

22. Partially accepted in findings of fact 12 and 13.

1. Partially accepted in findings of fact 13 and 16.

2. Partially accepted in finding of fact 16.

3. Partially accepted in finding of fact 17. Also, see Endnote 1.

29 and 30. Partially accepted in finding of fact 17.

32, 34 and 35. Partially accepted in finding of fact 18.

36. Partially accepted in finding of fact 19.

38. Partially accepted in finding of fact 20.

39-41. Partially accepted in finding of fact 21.

1. Partially accepted in finding of fact 24.

2. Partially accepted in findings of fact 22 and 23.

3. Partially accepted in finding of fact 24.

4. See, Endnote 2.

5. Partially accepted in finding of fact 25.

6. Partially accepted in finding of fact 26.

7. Partially accepted in finding of fact 29.

50. Partially accepted in findings of fact 17 and 18.

1. Partially accepted in finding of fact 23.

2. Rejected as contrary to the evidence.

56-58. Partially accepted in finding of fact 12.

1. Partially accepted in findings of fact 12 and 17.

2. Partially accepted in findings of fact 17 and 24. See, also Endnote

2.

Respondent's Proposed Findings of Fact

1. Partially accepted in finding of fact 11.

2 and 3. Partially accepted in finding of fact 7.

4. Rejected as subordinate.

5-7. Partially accepted in finding of fact 15.

1. Partially accepted in findings of fact 17, 18, 22, 23 and 26.

2. Partially accepted in finding of fact 29.

10 and 12. Partially accepted in finding of fact 8.

11. Partially accepted in finding of fact 9.

1. Partially accepted in finding of fact 10.

2. Partially accepted in finding of fact 16.

3. Partially accepted in finding of fact 20.

4. Partially accepted in finding of fact 23.

17 and 18. Partially accepted in finding of fact 24.

19. Partially accepted in finding of fact 6.

20 and 21. Partially accepted in findings of fact 17 and 26.

[Respondent also separated its proposed findings of fact into two categories: stipulated facts and issues of fact to be determined. The following addresses the proposed findings of fact under the second category.]

1-3. Rejected as being conclusions of law.

Intervenor's Proposed Findings of Fact

1. and 3. Rejected as being argument, or conclusion of law.

2. and 6. Rejected as being subordinate.

1. Partially accepted in findings of fact 18, 19, 21, 22, 24, and 25.

2. Partially accepted in finding of fact 29.

   1. Partially accepted in finding of fact 11.

   2. First sentence rejected as being contrary to the evidence; remainder partially accepted in finding of fact 2.

C and D. Partially accepted in finding of fact 12.

E. Partially accepted in finding of fact 13.

[All paragraphs from pages 5 through 8 are not considered to be proposed findings of fact. But, if they are intended to be, they are rejected as being argument, or conclusions of law.]

NOTE--Where a proposed finding has been partially accepted, the remainder has been rejected as being irrelevant, unnecessary, subordinate, cumulative, not supported by the more credible evidence, not supported by the greater weight of the evidence, argument, or conclusion of law.

COPIES FURNISHED:

Stuart M. Silverman, Esquire Damsel & Gelston, P.A.

Post Office Box 4507

West Palm Beach, Florida 33401

Colleen A. Donahue, Esquire District 10 Legal Office Suite 512

201 West Broward Boulevard

Fort Lauderdale, Florida 33301-1885

Matthew E. Morrall, Esquire MATTHEW E. MORRALL, P.A.

International Building, Penthouse West 2455 East Sunrise Boulevard

Fort Lauderdale, Florida 33304

H. James Towey Secretary

Department of Health and Rehabilitative Services

1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Robert Powell, Clerk Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Kim Tucker, Esquire 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.

================================================================= ORDER DENYING ATTORNEY FEES AND COSTS WITHOUT PREJUDICE

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SON MAR SOUTH SANITATION, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 94-5488BID

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

and )

) INDUSTRIAL WASTE SERVICE, INC., )

)

Intervenor. )

)

ORDER DENYING ATTORNEY FEES AND COSTS WITHOUT PREJUDICE

THIS CAUSE came on for consideration upon Petitioner's motion for attorney fees and costs filed on January 25, 1995. Petitioner seeks an award of attorneys fees and costs, if it is the prevailing party, from the Respondent, a state agency, pursuant to Chapter 120, Florida Statutes, and Section 284.30, Florida Statutes.

Regarding Chapter 120, a prevailing party is entitled to attorney fees and costs pursuant to Section 120.59(6), Florida Statutes, and Section

57.111(4)(b)2, Florida Statutes. Section 120.59(6) is not applicable to this case since the award is being sought from an agency. As to Section 57.111(4)(b)2, it may be applicable, but no final order has been rendered in this case, so a request at this time is premature. State, Department of Health and Rehabilitative Services v. South Beach Pharmacy, Inc., 635 So.2d 117 (Fla. 1st DCA 1994).

Regarding Section 284.30, no provision of Chapter 284, Part II, Florida Statutes, provides for an ward of attorney fees and costs. Moreover, the statute contains no provision which confers jurisdiction upon the Division of Administrative Hearings to determine a request for attorney fees and costs.

Therefore, the Hearing Officer does not have jurisdiction to make a determination concerning attorney fees and costs pursuant to this statutory section.

The premises considered, it is

ORDERED that the motion for attorney fees and costs is DENIED without prejudice.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 23rd day of March 1995.

ERROL H. POWELL

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 23rd day of March 1995.

COPIES FURNISHED:

Stuart M. Silverman, Esquire DAMSEL & GELSTON, P.A.

Post Office Box 4507

West Palm Beach, Florida 33401

Colleen A. Donahue, Esquire District 10 Legal Office Suite 512

201 West Broward Boulevard

Fort Lauderdale, Florida 33301-1885

Matthew E. Morrall, Esquire International Building, Penthouse West 2455 East Sunrise Boulevard

Fort Lauderdale, Florida 33304

================================================================= AGENCY FINAL ORDER

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

STATE OF FLORIDA

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES

SON MAR SOUTH SANITATION,

INC., a Florida corporation, Petitioner,

vs. CASE NO. 94-5488BID

RENDITION NO. HRS-95-153-FOF-BID

STATE OF FLORIDA DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES,

Respondent.

/

FINAL ORDER

This cause came on before me for the purpose of issuing a final agency order. The Hearing Officer assigned by the Division of Administrative Hearings in the above-styled case submitted a Recommended Order to the Department of Health and Rehabilitative Services. The Recommended Order entered March 28, 1995 by Hearing Officer Erroll H. Powell is attached hereto and incorporated herein.

RULINGS ON EXCEPTIONS

Petitioner Son Mar South Sanitation, Inc. ("Son Mar") filed ten pages of unnumbered paragraphs of exceptions. The first exception, in the first full paragraph on page 3 of Son Mar's exceptions, appears to except to the "conclusions of law" and contends

that the occupational license was not material to bid and that HRS like any state agency must follow the spirit and letter of the competitive bidding statute and is not subject to the legislative enactments of a municipal corporation when it comes to competitive bidding. Further, to allow the bid to be awarded to an entity solely because they are the exclusive franchise hauler for Pembroke Pines subverts the purpose of competitive bidding and accordingly the contract must be awarded to Son Mar.

The exception is denied. I am in agreement with the hearing officer's findings of fact and his analyses contained in his conclusions of law. HRS could have legally treated this procurement as a single-source purchase, dispensing with

competitive bidding altogether. HRS did not err in treating Son Mar as a bidder which would be unable to perform because of the city's refusal to license Son Mar. The exception is without merit.

The exceptions to paragraphs 38 and 39 of the Recommended Order are denied.

These conclusions follow the facts adduced at hearing. I am in agreement with the hearing officer's reasoning and adopt that reasoning as the agency's own.

Son Mar next excepts to finding of fact 24, contending that the settlement between HRS and IWS was not reached on July 14, 1994, but on both July 14 and July 15, 1994. The exception is granted, as the exhibit is dated July 14, yet signed by the writer on July 15. Son Mar further excepts to finding 28 that the protest was filed on or about August 24, 1994. Son Mar appears to assert that the protest was filed on August 22, 1994, the day that the attorney certified it was hand-delivered to HRS. The evidence shows the cover letter of transmittal is dated August 24, 1994. The exception to paragraph 28 is denied. Son Mar excepts to finding 29 that it has to date pursued no civil action to challenge the contract between IWS and the city or to have the city ordinance declared unconstitutional. The exception is denied. Son Mar's witness testified that, to her knowledge, no court action was ever filed.

The remainder of Son Mar's exceptions either disagreeing with the hearing officer's failure to adopt certain of its proposed findings of fact, or disagreeing with the endnote are denied. San Mar's proposed findings are a question of the weighing of the evidence, which is exclusively within the province of the hearing officer. There is conflicting evidence. The hearing officer's findings are supported by competent, substantial evidence in the record.

FINDINGS OF FACT

The department hereby adopts and incorporates by reference the findings of fact set forth in the Recommended Order, except where inconsistent with the above rulings on exceptions.

CONCLUSIONS OF LAW

The Department hereby adopts and incorporates by reference the conclusions of law set forth in the Recommended Order except where inconsistent with the above rulings on exceptions.

Based upon the foregoing, it is

ADJUDGED, that the protest of Petitioner Son Mar South Sanitation, Inc., be and the same is hereby DISMISSED for lack of merit.

DONE and ORDERED at Tallahassee, Florida, this 27th day of June, 1995.

Edward A. Feaver Acting Secretary

Department of Health and Rehabilitative Services

By Lowell Clary

Deputy Secretary for Administration

NOTICE OF RIGHT TO JUDICIAL REVIEW

PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW PURSUANT TO SECTION 120.68, FLORIDA STATUTES. REVIEW PROCEEDINGS ARE GOVERNED BY THE FLORIDA RULES OF APPELLATE PROCEDURE. SUCH PROCEEDINGS ARE COMMENCED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE DIVISION OF ADMINISTRATIVE HEARINGS AND A SECOND COPY, ACCOMPANIED BY FILING FEES PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, OR WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY RESIDES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.

COPIES FURNISHED:

Stuart M. Silverman, Esquire Damsel & Gelstron P.A.

Post Office Box 4507

West Palm Beach, Florida 33401-4507

Colleen A. Donahue, Esquire HRS District 10 Legal Office Suite 502

201 West Broward Blvd.

Fort Lauderdale, Florida 33301-1885

Matthew E. Morrall, Esquire Matthew E. Morrall, P.A.

International Building, Penthouse West 2455 East Sunrise Blvd.

Fort Lauderdale, Florida 33304

Hearing Officer Errol H. Powell Division of Administrative Hearings The DeSoto Bldg.

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing FINAL ORDER has been sent by U.S. Mail and hand delivery to the above-named persons this 28th day of June, 1995.

Robert L. Powell, Sr. Agency Clerk

Department of Health and Rehabilitative Services Building E, Suite 200

Tallahassee, Florida 32399-0700

Docket for Case No: 94-005488BID

Orders for Case No: 94-005488BID