STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WHARTON INVESTMENT GROUP, LTD., )

A Florida limited partnership ) by and through PROCACCI )

COMMERCIAL REALTY, INC., )

its General Partner, )

)

Petitioner, )

)

vs. ) Case No. 98-4063BID

) DEPARTMENT OF JUVENILE JUSTICE, )

)

Respondent. )

)

RECOMMENDED ORDER

Following notice to all parties, Don W. Davis, Administrative Law Judge for the Division of Administrative Hearings, held a final hearing in the above-styled case on October 23, 1998, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Robert A. Sweetapple, Esquire

Sweetapple, Broeker and Varkas

465 East Palmetto Park Road Boca Raton, Florida 33432

For Respondent: Joseph M. Helton, Jr., Esquire

Scott C. Wright, Esquire Department of Juvenile Justice 2737 Centerview Drive

Tallahassee, Florida 32399-3100

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent’s intended award of a lease for office space to a bidder other than

Petitioner was clearly erroneous, contrary to competition, arbitrary, or capricious.

PRELIMINARY STATEMENT

On or about May 18, 1998, Respondent issued its Request For Proposals (RFP) seeking proposals to provide a lease to Respondent of approximately 5,000 square feet of office space in Lake City, Florida.

On August 4, 1998, Respondent notified responding bidders of its intent to award the lease. Petitioner was not the selected bidder and timely filed its protest to the bid award.

The matter was referred to the Division of Administrative Hearings for conduct of formal proceedings on or about September 14, 1998.

At the final hearing, Petitioner presented 14 joint exhibits and three additional exhibits which were admitted into evidence, as well as testimony of five witnesses. Respondent presented the same 14 joint exhibits, three additional exhibits, and testimony of four witnesses.

The transcript of the final hearing was filed on November 9, 1998. Parties requested and were granted more than 10 days within which to file proposed recommended orders. Review of those proposed recommended orders has been concluded and those submissions considered in the preparation of this Recommended Order as deemed appropriate.

FINDINGS OF FACT

1. Respondent, on or about May 18, 1998, advertised and released RFP for Lease No. 800:0184 in order to procure approximately 5,000 square feet of office space in Lake City, Florida.

2. Three timely filed proposals were submitted in response to the RFP. One of the submissions was determined to be nonresponsive and rejected. The two other proposals submitted by Petitioner and William and Willene Giles (Giles) were deemed responsive and evaluated by Respondent personnel.

3. Site visits were made to each of the proposed sites. The sites were then evaluated using a numerical scoring system. Respondent’s initial posting of bid results on August 4, 1998, indicated a tentative award of the lease to Giles. Giles received a total score of 88.5 points. Petitioner received the maximum points with respect to cost, but was given only a total of 75.7 points.

4. The RFP clearly requires that a bidder must provide a site layout drawn to scale which indicates the facility location and dimensions of each parking space. Also, the number of parking spaces assigned to other tenants must be identified. A bidder must agree to provide 25 parking spaces on site for use by Respondent.

5. The site plan submitted with the Giles proposal shows five of the required parking spaces are located on property

   abutting the Giles property. Those five parking spaces do not currently exist on that property. No ingress or egress is shown on the site plan, although such is required by the RFP.

6. The Giles bid should demonstrate requisite control over the adjacent property utilized in that bid. Such is not the case. Documents submitted to indicate control of the property by Giles are deficient. In addition to holders of life estates in the property, fee owners of the property must also agree to use of the property in conjunction with the lease between Giles and Respondent. The evidence does not establish that the fee owners have provided their consent.

7. Testimony of Mary Goodman, an expert witness on behalf of Petitioner, establishes that the Giles’ bid did not demonstrate the requisite control of the property, specifically the parking area, required by the RFP at the time of bid opening.

   The Giles bid was not responsive.

   
   

8. Petitioner’s bid identifies and offers for lease space in the Lake City Professional Plaza. The drawing submitted with the bid mistakenly identifies the area of the proposed lease space as “Grant Plaza.”

9. Additionally, Petitioner’s bid did not contain a Public Entity Crime Addendum as required by the RFP. Failure to meet this requirement, by terms of the RFP, “will result in immediate disqualification of your proposal.”

10. Other errors in Petitioner’s bid include the drawing submitted in the bid response which depicts parking. The drawing indicates that there are “new” parking spaces which are to be 10 feet wide by 19 feet deep. Under local land use regulations, new regular parking spaces must be 10 feet by 21 feet with a requirement that handicapped spaces measure 12 feet by 20 feet. Petitioner’s bid fails to comport with applicable local land use regulations.

11. On page 2 of the RFP, Respondent reserves the right to reject any and all proposals which are not responsive. Neither the Giles’ bid nor the Petitioner’s is found to be responsive.

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over this matter. Section 120.57(3), Florida Statutes.

13. Section 120.57(3)(f), Florida Statutes, provides in pertinent part:

    In a competitive-procurement protest, no submissions made after the bid or proposal opening amending or supplementing the bid or proposal shall be considered. Unless otherwise provided by statute, the burden of proof shall rest with the party protesting the proposed agency action.

    
    

14. Petitioner, the party protesting Respondent’s proposed action, bears the burden of demonstrating that the proposed agency action is “clearly erroneous, contrary to competition, arbitrary, or capricious.” Petitioner has met the burden by

    showing that the Giles’ bid was non-responsive as a result of lack of control by Giles of the property to be used for parking.

15. Likewise, Petitioner must also prove that its bid was responsive in all respects. See Intercontinental Properties, Inc. v. Florida Dep’t of HRS, 606 So. 2d 380, 384 (Fla. 3d DCA 1992). In this regard, Petitioner has failed.

16. Absent post bid submittals that would strain the integrity of the bid process, neither Giles nor Petitioner should be awarded the lease which is the subject of this proceeding. Remaining mindful of the admonishment in Section 120.57(3)(f), Florida Statutes, regarding competitive-procurement protests, no submissions made after the bid or proposal opening amending or supplementing the bid or proposal are to be considered. See also Harry Pepper & Associates, Inc. v. City of Cape Coral, 352 So. 2d 1190, 1192 (Fla. 2nd DCA 1977).

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered finding none of the bids to be responsive and making such other disposition as may be deemed appropriate.

DONE AND ENTERED this 7th day of December, 1998, in Tallahassee, Leon County, Florida.

DON W. DAVIS

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 7th day of December, 1998.

COPIES FURNISHED:

Joseph M. Helton, Jr., Esquire Scott C. Wright, Esquire Department of Juvenile Justice 2737 Centerview Drive

Tallahassee, Florida 32399-3100

Robert A. Sweetapple, Esquire Sweetapple, Broeker and Varkas

465 East Palmetto Park Road Boca Raton, Florida 33432

Calvin Ross, Secretary Department of Juvenile Justice 2737 Centerview Drive

Tallahassee, Florida 32399-3100

Janet Ferris, Esquire Department of Juvenile Justice 2737 Centerview Drive

Tallahassee, Florida 32399-3100

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 10 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: 98-004063BID

Orders for Case No: 98-004063BID