STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

INTERNATIONAL INVESTMENT ) COUNSEL, INC., )

)

Petitioner, )

)

vs. ) Case No. 98-3711BID

) DEPARTMENT OF CORRECTIONS, )

)

Respondent. )

)

RECOMMENDED ORDER

On November 17, 1998, the Division of Administrative Hearings, by its duly designated Administrative Law Judge, Stephen F. Dean, heard argument in the above-styled case on Petitioner's Motion for Summary Recommended Order, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Carolyn S. Raepple, Esquire

Hopping, Green, Sams and Smith, P.A.

123 South Calhoun Street Tallahassee, Florida 32301

For Respondent: Scott E. Clodfelter, Esquire

Obed Dorceus, Esquire Department of Corrections 2601 Blair Stone Road

Tallahassee, Florida 32399-2500

STATEMENT OF THE ISSUE

Whether a contract exists for the lease of office space in Shalimar, Florida, between the Department of Corrections (DOC) and International Investment Counsel, Inc. (IIC).

PRELIMINARY STATEMENT

This case was commenced as a bid protest. The parties filed a stipulation and motion for summary recommended order.

FINDINGS OF FACTS

1. On or about May 18, 1998, DOC issued a Request for Proposal (RFP) for Lease No. 700:0792, Shalimar Probation and Parole Office (the Lease).

2. IIC, DOC’s current landlord for the Shalimar Probation and Parole Office, and another bidder, Bonafied Business Associates, Inc. (Bonafied), timely filed responses to the RFP.

3. DOC opened and initially determined both proposals to be responsive to the RFP.

4. Following evaluation of the bids by an evaluation committee, DOC posted its decision to award the lease to IIC.

5. Bonafied timely filed a notice of protest.

   
   

6. After Bonafied filed its notice of protest, Bonafied met with DOC and pointed out that IIC’s proposal did not clearly specify 40 exclusive parking spaces required by the RFP.

7. Before the expiration of the 10-day period within which Bonafied was required by statute to file its formal written protest, DOC informally notified Bonafied that it intended to withdraw its award to IIC and repost its intent to award the lease to Bonafied.

8. For logistical reasons, DOC did not communicate to IIC

   its intent to withdraw its award of the lease on or before July 17, 1998, the deadline for Bonafied to file its formal written protest.

9. Notwithstanding that failure of notice to IIC of DOC’s intent to withdraw the lease award, Bonafied failed to perfect its protest and file a formal written protest by the deadline of July 17, 1998, as required by Section 120.57(3)(b), Florida Statutes.

10. Subsequently, Bonafied rented the office space offered in its bid to another tenant.

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the subject matter and parties to this proceeding pursuant to Sections 120.569 and 120.57(3), Florida Statutes.

12. Once a public body has advertised for competitive proposals, awarded the contract, notified the successful proposer of the award, and the time for protest has passed, a contract exists, even where, as here, the lease has not been executed. See, e.g., Dedmond v. Escambia County, 244 So. 2d 758 (Fla. 1st DCA 1971).

13. When Bonafied failed to perfect its protest on July 17, 1998, a contract was formed between DOC and IIC for the lease of the Shalimar Probation and Parole Office.

14. Moreover, the failure of the current landlord to

clearly specify in its proposal the number of exclusive parking spaces available for the tenant was arguably an immaterial departure from the RFP and was waivable, as initially determined by DOC when it first evaluated the proposals.

RECOMMENDATION

Based on the foregoing, it is RECOMMENDED:

That a Final Order be entered directing Department of Corrections to execute a lease with IIC for the Shalimar Probation and Parole Office consistent with the contract now in force between IIC and the DOC.

DONE AND ENTERED this 23rd day of November, 1998, in Tallahassee, Leon County, Florida.

COPIES FURNISHED:

Carolyn S. Raepple, Esquire Cheryl G. Stuart, Esquire Hopping, Green, Sams

and Smith, P.A.

STEPHEN F. DEAN

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 23rd day of November, 1998.

Post Office Box 6526 Tallahassee, Florida 32314

Scott E. Clodfelter, Esquire Obed Dorceus, Esquire Department of Corrections 2601 Blair Stone Road

Tallahassee, Florida 32399-2500

David Theriaque, Esquire 909 East Park Avenue

Tallahassee, Florida 32301-2646

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

2601 Blairstone Road

Tallahassee, Florida 32399-2500

Louis A. Vargas, General Counsel Department of Corrections

2601 Blairstone Road

Tallahassee, Florida 32399-2500

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 98-003711BID

Orders for Case No: 98-003711BID