Judges: WILLIAM E. WILLIAMS
Agency: Department of Corrections
Latest Update: May 02, 1990
Summary: It was not arbitrary or capricious for Department of Corrections (DOC) to limit bids to only include office space of specific square footage. Hearing Officer awards contract to Intervenor.
83-1761.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
LEE A. EVERHART AND )
COMPANY, INC., )
)
Petitioner, )
)
vs. ) CASE NO. 83-1761BID
) STATE OF FLORIDA, DEPARTMENT ) OF CORRECTIONS, )
)
Respondent, )
and )
)
BLAIRSTONE CENTER PARTNERS )
and BEN GRACE, )
)
Intervenors. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William E. Williams, held a public hearing in this cause on February 21, 1984, in Tallahassee, Florida.
APPEARANCES
For Petitioner: John A. Barley, Esquire
Suite 315, Lewis State Bank Building Tallahassee, Florida 32301
For Respondent: Louis A. Vargas, Esquire
Department of Corrections 1311 Winewood Boulevard
Tallahassee, Florida 32301
For Intervenor, Harold E. Regan, Esquire Ben Grace: 308 East College Avenue
Tallahassee, Florida 32301
For Intervenor, Kenneth G. Oertel, Esquire Blairstone: Suite 646, Lewis State Bank Building
Tallahassee, Florida 32301
This proceeding was initiated by Petitioner, Lee A. Everhart and Company, Inc. ("Petitioner"), filing a protest of Respondent's evaluation of Petitioner's bid for the award of lease No. 700:0256, and the proposed award of that lease far to Washington Square, Ltd. Petitioner followed the filing of its protest with a Petition for Formal Hearing on May 27, 1983. After the petition was forwarded to the Division of Administrative Hearings for the holding of a formal hearing, Blairstone Center Partners filed a Petition for Leave to Intervene,
which was granted by Order of August 17, 1983. On September 13, 1983, Ben Grace, as the successor in interest to Washington Square, Ltd., filed a Motion to Intervene, which was granted by Order dated October 21, 1983. Final hearing in this cause was scheduled for February 21, 1984, by Amended Notice of Hearing dated January 9, 1984.
At the final hearing Petitioner called Bill Thurber, Nell Van Landingham, William Stancill, and Lee A. Everhart as its witnesses. Intervenor Ben Grace testified in his own behalf and called James Jarrett as its only other witness. Petitioner offered Petitioner's Exhibits 1 through 18, which were received into evidence. Respondent offered Respondent's Exhibit 1, which was received into evidence, and Intervenor Ben Grace offered Exhibits 1 through 3, which were received into evidence.
Each of the parties has submitted proposed findings of fact for consideration by the Hearing Officer. To the extent that those proposed findings are not included in this order, they have been specifically rejected as being either irrelevant to the issues involved in this cause, or as not having been supported by evidence of record.
FINDINGS OF FACT
On or about February 9, 1983, the State of Florida, Department of General Services, Division of Construction and Property Management, Bureau of Property Management ("DGS"), received a certification of need from the Department of Corrections ("DOC") requesting authority for DOC to advertise for competitive bids from private persons interested in providing leased office space needed to house DOC's Bureau of Industries. The Bureau of Industries was then located in leased space with leases which were scheduled to expire June 30, 1983.
The Bureau of Industries has been located in DOC's central office area since its creation in 1957. The DOC central office includes the Secretary and Deputy Secretary; the Assistant Secretaries for Operations, Programs, Management, and Budget. All these officials, together with subsidiary bureaus, staff, and other subordinates are located in two adjacent buildings of the Winewood Office Complex on Blair Stone Road in Tallahassee. The prison industry program is under the supervision of the industries administrator who reports directly to the Assistant Secretary for Operations. DOC sought approval from DGS to enter into a lease for privately owned office space because of its perceived need to locate within walking distance of its central office.
Programs administered by the Bureau of Industries work closely with other DOC personnel and functions located in the central office in the Winewood Office Complex. Moving any distance from the central office would create problems for the DOC mailing system and would require extra time spent traveling to and from the central office. Personnel in the Bureau of Industries utilize central office files, and confer often with staff located in the central office.
Locating outside the general area of the central office would require additional expenses with regard to availability of vehicles, pick up of mail and supplies, and duplication of support services. Accordingly, DGS and DOC determined, and the record in this cause establishes, that it would not be in the state's best interest to require DOC to locate its Bureau of Industries program either in state-owned buildings in the Capitol Center, or in any area beyond walking distance of the central office location.
On March 21 and 31, 1983, respectively, DOC published an advertisement in the Tallahassee Democrat inviting all interested persons to submit sealed
bids at or before 2:00 p.m. on April 19, 1983, in accordance with the Invitation to Bid and Specifications prepared by DOC for the office space needed to house the Bureau of Industries. A portion of the bid specifications required that office space to be leased be located within a circle drawn on a city map of the City of Tallahassee, Florida, which could roughly be described as the southeastern portion of the city, in the vicinity of the Winewood Office Complex. There were four possible bidders in the area within the circle on the map attached to the bid specifications. Of these four possible bidders, two within the area actually submitted bids--Blairstone Center Partners and Washington Square, Ltd.
One of the general provisions of the bid specifications provided as follows:
The Department of Corrections reserves the right to reject any and all bids, waive any minor informality or technicality in bids received and to accept that bid deemed to be the lowest and best. . .
At or before 11:00 a.m. on April 19, 1983, DOC received sealed bids from Petitioner and Intervenors in response to the aforesaid advertisement, and at 11:00 a.m. on April 19, 1983, DOC opened, tabulated, and published each of the bids.
The bid submitted by Petitioner was not responsive to the requirements of the Invitation to Bid and Specifications because the property offered by Petitioner in its response was outside the area indicated on the map annexed to the Invitation to Bid.
The bid submitted by Intervenor, Blairstone Center Partners, failed to offer the full services specified in paragraph six of DOC's Bid Submittal Form; failed to offer the exclusive parking specified in the paragraph seven of the Bid Submittal Form; failed to supply the photographs specified in paragraph ten of Respondent's Bid Submittal Form; and failed to supply the information specified in paragraphs one through eight of the Bid Submittal Form.
Accordingly, the record in this cause fully establishes that the bids submitted by Petitioner and by Intervenors Blairstone Center Partners, failed to comply with the requirements of the Invitation to Bid and Bid Submittal Form, and that the deficiencies in the bids of Petitioner and Intervenor, Blairstone Center Partners, were so material as to require their rejection.
The Invitation to Bid and Bid Submittal Form required that bidders offer for lease 2,683 square feet, plus or minus three percent. The bid submitted by Intervenor, Washington Square, Ltd., offered 2,797 square feet, which is approximately 34 square feet more than allowed in the Invitation to Bid. After this fact was discovered upon opening the bid, DOC personnel contacted a representative of Washington Square, Ltd., and advised the net square footage offered in the bid submitted by Washington Square, Ltd., exceeded the net square footage of space that DOC was authorized to lease and pay for under the Invitation to Bid. Washington Square, Ltd., subsequently agreed to modify its proposal by relieving DOC from any obligation to pay for the extra 34 square feet, and reducing the annual rental for the first year from $26,012.10 to $25,695.90, and for the second year from $27,576.60 to $27,243.18. The record in this cause does not establish any misconduct or collusion between
Washington Square, Ltd., and DOC personnel obtaining this modification, nor does the record in this cause establish that any actual or prospective bidders suffered any competitive disadvantage as a result of this modification. The effect of Washington Square, Ltd.'s modification of its proposal rendered that proposal the only bid which was responsive to the Invitation to Bid.
On August 18, 1983, Washington Square, Ltd., executed a deed to the property which was the subject matter of its bid to Ben Grace. Washington Square also executed an assignment of the proposed bid award to Grace.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of, and the parties to, this proceeding. Section 120.57(1), Florida Statutes.
Section 255.25(3)(a), Florida Statutes, and Rule 13D-7.092(1), Florida Administrative Code, prohibit a state agency from entering into a lease for 2,000 square feet or more of space in a privately owned building ". . . except upon advertisement for and receipt of competitive bids and award to the lowest and best bidder. . . .
Rule 13D-7.092(6)(b), Florida Administrative Code, provides as follows:
The user agency, in conjunction with preparing specifications, shall develop weighted evaluation criteria. The criteria items most significant to the user agency's needs should bear the highest weight. The cost of relocation, if any; consolidation of activities,
if desirable; and other factors deemed necessary should be weighted.
Rule 13D-7.092(6)(a), Florida Administrative Code, provides as follows:
The user agency alone shall reserve the right to accept or reject any or all
bids submitted and if necessary reinitiate procedures for soliciting competitive proposals.
As pointed out by the court in Capeletti Brothers v. Department of General Services, 432 So.2d 1359, 1363 (Fla. 1st DCA 1983):
In Florida, a public body has wide discretion in soliciting and accepting bids for public works contracts and its decision, when based upon an honest exercise or such discretion, will not
be set aside . . . even if it may appear erroneous and even if reasonable persons may disagree . . . To overturn. . . [the] award of [a] . . . contract, [it is necessary]
to find that the award was arbitrary and capricious . . .
It is concluded, as a matter of law, that DOC's restriction of the geographic area in which it could accept bids for leased office space was neither arbitrary nor capricious, but was instead based upon a legitimate evaluation of the agency's need, and therefore constituted "an honest exercise of discretion." It is further concluded that the 34-square-foot overage in the bid submitted by Washington Square, Ltd., constituted a relatively minor irregularity which DOC was entitled, both in law and under the bidding documents, to waive in a situation where, as here, there is no evidence of fraud or misconduct on the part of DOC, and no competitive advantage accruing to the successful bidder or disadvantage accruing to the unsuccessful bidders. See, Liberty County v. Baxter's Asphalt and Concrete, Inc., 421 So.2d 505, 507 (Fla. 1982).
Accordingly, based upon the foregoing Findings of Fact and Conclusions of Law, it is
RECOMMENDED:
That a Final Order be entered by the State of Florida, Department of Corrections, awarding the subject contract to Ben Grace as the successor in interest of Washington Square, Ltd., the lowest and best bidder.
DONE AND ENTERED this 16th day of May, 1984, at Tallahassee, Florida.
WILLIAM E. WILLIAMS, Hearing Officer Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32301
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 16th day of May, 1984.
COPIES FURNISHED:
John A. Barley, Esquire
Suite 315, Lewis State Bank Building Tallahassee, Florida 32301
Louis A. Vargas, Esquire Department of Corrections 1311 Winewood Boulevard
Tallahassee, Florida 32301
Harold E. Regan, Esquire
308 East College Avenue Tallahassee, Florida 32301
Kenneth G. Oertel, Esquire
Suite 646, Lewis State Bank Building Tallahassee, Florida 32301
Louie L. Wainwright, Secretary Department of Corrections 1311 Winewood Boulevard
Tallahassee, Florida 32301
Docket for Case No: 83-001761
Orders for Case No: 83-001761
| Issue Date |
Document |
Summary |
|
May 30, 1984 |
Agency Final Order
|
|
|
May 16, 1984 |
Recommended Order
|
It was not arbitrary or capricious for Department of Corrections (DOC) to limit bids to only include office space of specific square footage. Hearing Officer awards contract to Intervenor.
|
