STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PROCACCI REAL ESTATE MANAGEMENT ) CO., LTD., )

)

Petitioner, )

)

vs. ) CASE NO. 88-0165BID

) DEPARTMENT OF CORRECTIONS, )

)

Respondent, )

and )

) IN-REL ACQUISITIONS, INC., )

)

Intervenor. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Don W. Davis, on January 25, 1988 in Fort Lauderdale, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Robert A. Sweetapple, Esquire

Suite 800, Concord Building

66 West Flagler Street Miami, Florida 33130

For Respondent: Drucilla Bell, Esquire

Assistant General Counsel Department of Corrections 1311 Winewood Boulevard

Tallahassee, Florida 32399-2500

For Intervenor: Theodore D. Fisher, Esquire

Suite 1410, I Datran Center 9100 South Dadeland Boulevard Miami, Florida 33156

BACKGROUND

The Respondent advertised for competitive bids for office space to be located within a defined area in Broward County, Florida. Bid specifications likewise contained the requirement of geographical location for the desired leasehold. Upon opening and evaluating bids, Respondent selected the bid submitted by the Intervenor. Petitioner protested the selection on the basis that Intervenor's facility did not fall within the designated geographical area. This administrative proceeding followed. At hearing, Petitioner presented the

testimony of six witnesses and eight evidentiary exhibits. Respondent presented the testimony of four witnesses and four evidentiary exhibits. Intervenor presented testimony of one witness. Proposed findings of fact submitted by the parties are addressed in the appendix to this recommended order.

Based upon all of the evidence, the following findings of fact are determined:

FINDINGS OF FACT

1. Petitioner filed a timely notice of protest and formal protest.

   
   

2. Petitioner is Procacci Real Estate Management Co., Limited.

   
   

3. Respondent is the Department of Corrections of the State of Florida.

   
   

4. Intervenor is In-Rel Acquisitions, Incorporated.

   
   

5. As required by section 13M-1.015(2)(a), Florida Administrative Code, Respondent sought to encourage participation in the bidding process for additional office space. In that regard, Respondent published a newspaper advertisement in Broward County announcing the acceptance of sealed bids until

   10 a.m., December 14, 1987. The advertisement stated Respondent's desire to lease approximately 7,052 square feet of office space located in an area West of 27th Avenue, East of highway 441, North of Broward Boulevard and South of Oakland Park Boulevard. Three bids were received by Respondent and, after the announced deadline for submission, opened and evaluated.

   
   

6. Petitioner responded to the advertisement and requested a copy of the bid specifications and package to be completed by bidders. This package, entitled "REQUEST FOR PROPOSAL AND BID PROPOSAL SUBMITTAL FORM", contains a statement on the first page in the third numbered paragraph of general specifications and requirements that the space sought must located in Broward County "within boundaries depicted in the attached map". The attached map, in conformance with the newspaper advertisement noted above, has lines drawn around a geographical area roughly resembling a rectangle. As adduced at hearing, the eastern boundary of the area is 27th Avenue, the western boundary is highway 441, the northern boundary is Oakland Boulevard, and the southern boundary is Broward Boulevard.

   
   

7. Petitioner timely filed a sealed bid with the Respondent. That bid, in accordance with the bid specifications and administrative rules, had attached a copy of an option to purchase certain property which Petitioner was offering. The option was a contract to purchase the property and carried an expiration date of January 30, 1988. The document was signed by Roseann Cioce as buyer. Testimony elicited at hearing disclosed that Cioce is a limited partner in the Petitioner partnership. The name of the buyer of the property was listed on the document as "Roseann Cioce and /or Assigns of Procacci Real Estate." No evidence of assignment of Cioce's interest in the contract to the Petitioner's business is attached and none was offered in evidence at the hearing. It is therefore found that Petitioner's authority to offer the facility was not provided in accordance with provisions of the bid specifications or applicable administrative rules.

   
   

8. Page 2, paragraph 7 of Respondent's bid specifications require that a bidder provide approximately 50 off street spaces for exclusive parking use of the Respondent's employees and clients. While Petitioner's submitted bid

   alleged a total of 60 parking spaces at two different locations (28 spaces off site and 32 spaces included with the proposed site), the previously noted buyer's option submitted by Petitioner did not include all the real estate upon which parking would be situated. At hearing, the Petitioner presented an additional contract for purchase of the property to be used for this purpose.

   While this contract is signed by Pat Procacci (with the designation "partner" following the signature) on behalf of Procacci Real Estate Management Co., Ltd., the document is untimely. It bears a date of January 21, 1988. Respondent's specifications (page 8, paragraph 4 of "General Provisions") require submission of the bidder's option to purchase with the bid. The date for submission was, as previously noted, December 14, 1987.

   
   

9. Both pieces of property which the Petitioner proposes to lease to Respondent are, without issue, located "within" the geographical boundaries required by the map in Respondent's bid specifications.

   
   

10. Intervenor's employee, Dennis Udwin, testified at hearing that he received notice of the bid process in this case through a general mailing from the Department of General Services in Tallahassee, Florida. He then called the Respondent's probation and parole services circuit administrator in Broward County, Ronald Williams, to see if his property would meet Respondent's geographical bid specifications. Based on that conversation's confirmation of his own belief that his property qualified, Udwin proceeded to provide Intervenor's bid. He did not see the bid newspaper advertisement.

    
    

11. The property described in the Intervenor's bid response is located at 4121 Northwest 5th Street in Plantation, Florida. This property is not located within the geographical boundaries required by the map in Respondent's bid specifications. From evidence adduced at hearing, it is found that the intervenor's property does not even abut or border on highway 441, the Western boundary of the desired area.

    
    

12. A major brand gasoline service station is situated on property to the East of Intervenor's proposed location and West of Highway 441. That property is not owned by Intervenor.

    
    

13. Respondent considered Intervenor's property location, outside of the required geographical boundaries set forth in the bid specifications, to be a minor variation or technicality which could be waived by Respondent. As a result, Intervenor's bid was subsequently considered in Respondent's evaluation of the submitted bids.

    
    

14. Mark Shupp, Respondent's employee, testified that the location of Petitioner's property in a predominantly black neighborhood was not a factor in evaluation of the competing bid proposals. Based on the candor and demeanor of the witness, his testimony on this particular point is not credited.

    
    

15. Mary V. Goodman is Chief of the Bureau of Property Management for the Division of Facilities Management of the State of Florida's Department of General Services. She testified at hearing on behalf of Petitioner as an expert concerning the prevailing practice of exercise of administrative discretion as to whether a boundary requirement may be waived as a minor technicality or irregularity. From her testimony, it is established that the Bureau of Property management advises state agencies that such waiver is only proper when property located outside a designated geographical boundary, set forth in bid specifications, abuts that boundary.

16. The action of Respondent, regardless of intent, in advertising for space within a designated geographical area, had the effect of discouraging potential offerors from submitting properties located outside that area.

    
    

17. It is found that the action of the Respondent in determining the bid of Intervenor to be in compliance with bid specifications relating to geographical location was not the waiver of a minor variation. This action did give Intervenor a special advantage or benefit, namely the benefit of offering property located in a more aesthetically pleasing area without competing with other similarly situated offerors who, if knowledgeable of the possibility of such waiver, may have submitted competing bids. Further, Respondent's decision gave intervenor a distinct advantage over other bidders who believed they were confined to the specified geographical area.

    
    

18. Respondent's bid specifications contain an admonishment in paragraph number 6, on page 8, that the Respondent reserves the right to reject any and all bid proposals.

    
    

19. It is found that bids provided by both Petitioner and Intervenor were unresponsive to Respondent's specifications.

    
    

    CONCLUSIONS OF LAW

    
    

20. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes (1987).

    
    

21. Section 689.045, Florida Statutes, is urged by Intervenor as a basis for the conclusion that only a general partner may execute documents affecting a conveyance of property to a limited partnership, thus invalidating the buyer's option included in Petitioner's bid submission. While the signatory to that document, Roseann Cioce, is admittedly a limited partner, this status is not reflected in the document nor is the identity of the buyer shown to be Procacci Real Estate Management Company, Limited. A concern of equal or greater gravity is that the contract for sale does not include all property sought to be offered by the Petitioner.

    
    

22. The buyer option submitted by Petitioner was not complete due to the document's failure to indicate the bidder's authority for all property offered to be leased to Respondent and was not, therefore, in compliance with section 13M-1.015(4)(b), Florida Administrative Code or the bid specifications. Additionally, it is concluded the option is not authority for Petitioner to offer the property to Respondent absent assignment of Roseann Cioce's interest to Petitioner.

    
    

23. Consideration may not be given to the additional contract of sale supplied by Petitioner at hearing to remedy any of the deficiency noted above. A bidder may not amend a bid after opening. Section 13A-1.002(11), Florida Administrative Code. Responsiveness of the bids will be determined as of the time the bids were made public. Section 13A-1.001(13), Florida Administrative Code.

    
    

24. Intervenor's bid was also unresponsive in view of the location of the offered property outside the geographical area required in the bid specifications. Variations which are not minor cannot be waived. Section 13A- 1.001(10), Florida Administrative Code.

25. A competitive bid process requires two or more valid responses. Section 13A-1.001(12), Florida Administrative Code.

    
    

26. In this proceeding, two of the three bids received are unresponsive. The respondent should issue another invitation to bid. Section 13A-1.002(3), Florida Administrative Code.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent enter a final order finding bids of Petitioner

and Intervenor to be unresponsive and rejecting all bids.

DONE AND RECOMMENDED this 12th day of February, 1988, in Tallahassee, Florida.

DON W. DAVIS

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904)488-9675

Filed with the Clerk of the Division of Administrative Hearings this 12th day of February, 1988.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 88-0165BID

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on Proposed Findings of Fact submitted by the parties:

Petitioner's Proposed Findings of Fact

1. Included in part in finding number 5. Rejected in part as unnecessary.

2. Included within finding number 6.

3. Rejected as not consistent with the evidence.

4. Rejected as not consistent with the evidence.

5. Rejected as not consistent with the evidence.

6. Included in findings number 11 and 12.

7. Included in findings number 11 and 12.

8. Included in finding number 10.

9. Included in finding number 14.

10. Included in finding number 17.

11. Rejected as unnecessary.

12. Rejected as unnecessary.

13. Included in finding number 15.

Respondent's Proposed Findings of Fact

1. Rejected as unnecessary.

2. Rejected as unnecessary.

3. Rejected as unnecessary.

4. Accepted in part in finding number 5, but Notice specified particular boundaries.

5. Included in finding number 10.

6. Included in finding number 5.

7. Rejected as unnecessary.

8. Rejected as not consistent with the evidence.

9. Rejected as unnecessary.

10. Rejected as unnecessary, with exception of neighborhood location which is addressed in finding number 17.

11. Addressed in finding number 13.

12. Rejected as unnecessary and accumulative to finding number 15.

13. Included in part in findings numbered 5, 13, 16, and 17. Proposed language as to methodology of attempted award rejected as unnecessary.

Intervenor

Intervenor filed a memorandum in support of Respondent. That memorandum did not set forth proposed findings of fact. The memorandum has been reviewed by the Hearing Officer. Background information in the memorandum relate to Respondent's intentions as opposed to facts adduced at hearing. To the extent consistent with the Hearing Officer's findings, such information has been adopted in the findings of fact set forth in this Recommended Order.

COPIES FURNISHED:

Robert A. Sweetapple, Esquire Suite 800, Concord Building

66 West Flagler Street Miami, Florida 33139

Drucilla Bell, Esquire Assistant General Counsel Department of Corrections 1311 Winewood Boulevard

Tallahassee, Florida 32399-2500

Theodore D. Fisher, Esquire Suite 1410, I Datran Center 9100 South Dadeland Boulevard Miami, Florida 33156

Richard Dugger, Secretary Department of Corrections 1311 Winewood Boulevard

Tallahassee, Florida 32399-2500

Docket for Case No: 88-000165BID

Orders for Case No: 88-000165BID