STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MERCEDES LIGHTING AND )

ELECTRICAL SUPPLY, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 88-2211BID

) STATE OF FLORIDA, DEPARTMENT OF ) GENERAL SERVICES, )

)

Respondent, )

and )

) MARPAN SUPPLY COMPANY, INC., )

)

Intervenor. )

)

RECOMMENDED ORDER

RECOMMENDED ORDER a Pursuant to notice, the Division of Hearings, by its duly designated hearing Officer, William J. Kendrick, held a public hearing in the above-styled case on May 13, 1988, in Tallahassee, Florida.

APPEARANCES

For Petitioner: M. Christopher Bryant, Esquire

Oertel & Hoffman, P.A. Post Office Box 6507

Tallahassee, Florida 32314-6507

For Respondent: Susan B. Kirkland, Esquire

Robert D. Stinson, Esquire Office of General Counsel Department of General Services Room 452, Larson Building Tallahassee, Florida 32399-0955

For Intervenor: Stephen J. Kubik, Esquire

Bryant, Miller and Olive, P.A.

201 South Monroe Street, Suite 500 Tallahassee, Florida 32301

PRELIMINARY STATEMENT

These proceedings arose as a result of an invitation to bid (ITB) issued by Respondent, Department of General Services (Department), whereby the Department sought a 24-month term contract for the purchase of large lamps, photo lamps, and studio, theatre, television, and video lamps by all State of Florida agencies. The Department proposed to award the contract to Intervenor, Marpan

Supply Company, Inc., and Petitioner, Mercedes Lighting and Electrical Supply, Inc. , protested the award.

At final hearing the Petitioner called Victor J. La Porta, Mel Fisher, Larry W. Lassiter, and Timothy Gehling as witnesses. Petitioner's exhibits 1-7, 9, 11, 12, 16, 17, 20, and 23-26 were received into evidence. Respondent called

1. P. Barker, Jr., and Charles D. Beall as witnesses, and its exhibits 1-4 were received into evidence. Intervenor called Kim Williams and Carl Cushinor as witnesses, and its exhibits 1 and 2 were received into evidence.

   
   

   The transcript of hearing was filed May 20, 1988, and the parties were granted leave until May 31, 1988, to file proposed findings of fact. The parties' proposals have been addressed in the appendix to this recommended order.

   
   

   FINDINGS OF FACT

   
   

   Background

   
   

   1. On February 23, 1988, Respondent, Department of General Services (Department), issued an invitation to bid (ITB) numbered 218-285-400-6, whereby it sought to establish a 24-month term contract for the purchase of large lamps, photo lamps, and studio, theatre, television, and video lamps by all State of Florida agencies. By April l, 1988, the bid opening date, four bids had been filed with the Department.

      
      

   2. On April 12, 1988, the bid results were posted by the Department. The bid results revealed that Petitioner, Mercedes Lighting and Electrical Supply, Inc. (Mercedes), was the lowest bidder and that Intervenor, Marpan Supply Company, Inc. (Marpan), was the second lowest bidder. The bid results further revealed that the bid of Mercedes had been rejected because it did not include a list of in-state service representative(s) as required by the ITB, and that the Department proposed to award the contract to Marpan.

      
      

   3. On April 12, 1988, Mercedes timely filed its notice of protest with the Department. Along with its notice of protest, Mercedes submitted a list of its in-state service representatives, and noted on its letter of transmittal that this list was "not included at time of bid."

      The bid documents

      
      

   4. Pertinent to this case, the ITB contained the following special condition:

      
      

      Service

      Availability of in-state representation to assist in proper application and to resolve technical problems is a requirement of this bid and the resulting contract. Bidders must, therefore, include as part of the bid a list of in-state service representative(s) who will be responsible for providing these services during the term of the proposed contract. Failure to comply with this requirement will result in disqualification of bid. . . .

      
      

      The coordination effort will be handled by the specific individual designated on the ordering instruction sheet.

      
      

   5. The ITB also contained the following general condition:

      
      

      7. INTERPRETATIONS/DISPUTES: Any questions concerning conditions and specifications shall be directed in writing to this office for receipt no later than ten (10) days prior to the bid opening. No interpretation shall be considered binding unless provided in writing by the State of Florida in response to requests in full compliance with this provision. Any actual or prospective bidder who disputes the reasonableness, necessity or competitiveness of the terms and conditions of the Invitation to Bid, bid selection or contract award recommendation, shall file such protest in form of a petition in compliance with Rule 13A 1.006, Florida Administrative Code. Failure to file a protest within the time prescribed in Section 120.53(5), Florida Statutes, shall constitute a waiver of proceedings under Chapter

      120 Florida Statutes.

      
      

   6. Mercedes did not protest the bid specifications or conditions within 72 hours after receipt of the ITB, nor did it seek any interpretation of the conditions specifications. Notably, the only protest filed by Mercedes was after the bid opening.

      The bid protest

      
      

   7. At hearing, Mercedes contended that its bid complied with the ITB because it included a list of Mercedes' in-state service representative(s) or, alternatively, that its failure to include a list of its in-state representative(s) was a minor irregularity that the Department should waive. 1/

      
      

   8. Mercedes contends that its bid included a list of in-state service representatives, and therefore was responsive to the ITB, because of its response to page 11 of the bid package entitled "Ordering Instructions", and because there appeared on the back of the manufacturer's catalogs and price list, submitted with its bid, a Florida sales office for the manufacturer at which sales and technical information could be obtained. Mercedes' contention and the proof offered to support it are not credible.

      
      

   9. The form included at page 11 of the ITB provided, and was responded to by Mercedes, as follows:

      
      

      ORDERING INSTRUCTIONS NOTE: ALL ORDERS SHOULD BE DIRECTED TO:

      FEDERAL EMPLOYER IDENTIFICATION NUMBER (FEID) : 59-1891811

      
      

      VENDOR: Mercedes Lighting and Electrical Supply, Inc. STREET ADDRESS OR P.O. BOX: 7354 SW 48th St.

      CITY, STATE, ZIP: Miami, Florida 33155 TELEPHONE: (305) 665-5550

      TOLL FREE NO:

      
      

      DELIVERY: DELIVERY WILL BE MADE WITHIN SEE PAGE 4 DAYS AFTER RECEIPT OF PURCHASE ORDER. DELIVERIES IN EXCESS OF SEE PAGE 4 DAYS WILL NOT BE CONSIDERED.

      TEAMS FOR PROMPT PAYMENT; NET percent 30 DAYS PRODUCT

      INFORMATION; DIRECT INQUIRY TO: (NAME, ADDRESS, AND TELEPHONE

      NUMBER OR INDIVIDUAL IN YOUR ORGANIZATION WHO MAY BE CONTACTED REGARDING CONTRACT WHICH MAY RESULT FROM THIS BID.)

      
      

      NAME AND TITLE: Victor J. LaPorta, Vice President ADDRESS: 7354 SW 48th St.

      CITY, STATE, ZIP: Miami, FL. 33155 TELEPHONE: (305) 665-5550

      TOLL FREE NO.:

   10. Mercedes did not indicate in its response to the "Ordering Instructions" form that Mr. LaPorta was its in-state service representative, and its response could not reasonably be so construed. The individual a bidder designated on this form was, pursuant to the special condition of the ITB regarding "Service", the coordinator between a purchaser and the in-state service representative.

       
       

   11. Mercedes' contention that its bid included a list of its in-state service representatives, because the manufacturer's technical catalogs and price list submitted with its bid contained the location and phone number of the manufacturer's sales office in Florida, in addition to 23 other states, is incredible. The manufacture's technical literature and price list was, pursuant to the special conditions of the ITB, a required part of the bid. While the manufacturer may have listed its sales offices on the back of its literature, there is nothing in Mercedes' bid that remotely suggests it intended that listing to be considered its list of in-state service representatives, nor could its response reasonably be so construed.

       
       

   12. In rejecting Mercedes' contention that its bid was responsive to the ITB, and rejecting its proof as inherently improbable and unworthy of belief, I note that the Department has issued similar ITB's for a number of years. But for the language in this ITB advising bidders that failure to include a list of in-state service representatives would result in disqualification of the bid, the service provision has remained essentially the same, as has the "Ordering Instructions" form and the requirement that the manufacturer's technical literature and price list be included in the bid. When this same contract was let two years ago, Mercedes was a bidder. Included within its response to that ITB was a list of its in-state service representatives.

       
       

       A minor irregularity?

       
       

   13. While Mercedes did not protest the terms and conditions of the bid within 72 hours of receipt of the ITB, it offered proof at hearing which tended to demonstrate that the demand for technical assistance under the state contract was not frequent. Based on this premise, Mercedes contended that its failure to include a list of in-state service representatives with its bid was a minor irregularity that should be waived by the Department. Again, Mercedes' contentions are not persuasive.

       
       

   14. Whether the demand for technical assistance is frequent or infrequent may be germane to a timely challenge to the propriety of the ITB requirement that a list of in-state service representative included in the bid. However, where, as here, the bidder did not protest such condition in a timely manner, it has waived its right to a Chapter 120 proceeding to contest its propriety.

       Under such circumstances, the protest is limited to whether the failure to include such a list was a minor irregularity, and the frequency of demand for technical assistance is not relevant. 2/

       
       

   15. Minor irregularity is defined by Rule 13A-1.002(10), Florida Administrative Code, as:

       
       

       ...a variation from the invitation to bid... which does not affect the price of the bid..., or give the

       bidder... an advantage or benefit not enjoyed by other bidders..., or does not adversely impact the interests of the

       agency. Variations which are not minor can not be waived.

       
       

   16. The ITB mandated that failure to include a list of in-state service representatives with the bid would result in the bid's disqualification. Under such circumstances, Mercedes cannot be permitted to correct the deficiency after bid opening, and the deficiency cannot be deemed minor, because it would accord Mercedes an advantage not enjoyed by other bidders. Succinctly, Mercedes could revisit its bid on bid opening, refuse to supply the required list, and thereby effectively disqualify itself and withdraw its bid. The other bidders who timely submitted their lists would not have an opportunity to revisit their bids or withdraw their bids, but would be held to the provision of the ITB that prohibited such withdrawal for 90 days after bid opening.

       
       

       A frivolous protest

       
       

   17. Mercedes' protest was frivolous. It presented no justifiable question for resolution, and was without basis In fact or in law.

       
       

   18. Mercedes knew when it submitted its bid that a list of in-state service representatives was required. It simply forgot to include that list. When this oversight was disclosed at bid opening, it tried to supplement its bid. This effort, for the reasons set forth in the conclusions of law, was ineffective. Now, Mercedes would have the hearing officer believe that it intended its response to the "Ordering Instructions" form, as well as the manufacturer's technical literature and price list included in the bid, as its list of in-state service representatives. Such proof is not credible, such was not Mercedes' intent, and its response cannot reasonably be so construed. Mercedes' contention that its failure to include such list should be waived as a minor irregularity is likewise factually and legally without merit. See Saxon Business Products, Inc. v. Department of General Services, 4 FALR 1102-A (1982), wherein this issue was previously resolved adverse to the position advocated by Mercedes.

       
       

       The impact of the protest

       
       

   19. The current term contract for lamps expires June 9, 1988. Upon expiration of that contract, state agencies will not be accorded the savings generated by a term contract and will be required to competitively bid any lamp purchase over $3,000. Had Mercedes not protested the Marpan award, state agencies would have enjoyed continued savings under a term contract that would have provided them prices 50 percent lower than could be obtained through individual agency bids.

       
       

       CONCLUSIONS OF LAW

       
       

   20. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

       
       

   21. Section 120.53(5), Florida Statutes, and Rule 13A- 1.006, Florida Administrative Code, establish specific procedures to protest a bid solicitation requirement. The proper procedure for contesting the special condition of the ITB that required the bidder to include a list of in-state service representative(s) as a part of its bid, as well as the provision that failure to include such a list would result in disqualification of the bid, was by filing a bid solicitation protest within 72 hours of receipt of the ITB. Rule 13A-1.006, Florida Administrative Code. Since Mercedes did not file a timely protest of

       the ITB, it has waived its right to a Chapter 120 proceeding to contest the propriety of these provisions. Section 120.53(5), Florida Statutes, and Capeletti Bros. Inc., v. Department of Transportation, 499 So.2d 855 (Fla. 1st DCA 1986).

       
       

   22. While essentially conceding the fact that it has waived its right to protest the propriety of these provisions, Mercedes contended that its failure to include a list of in-state service representative(s) in its bid was a minor irregularity that should be waived by the Department. Mercedes' contention is not persuasive.

       
       

   23. Rule 13A-1.002(10), Florida Administrative Code, addresses the issue of minor irregularities in a bid as follows:

       
       

       The agency shall reserve the right

       to waive any minor irregularities in an otherwise valid bid.... A minor irregularity is a variation from the invitation to bid... which does not affect the price of the bid..., or give the bidder... an advantage or benefit not enjoyed by other bidders..., or does not adversely impact the interests of the agency. Variations which are not minor can not be waived.

       
       

   24. Since Mercedes' failure to include a list of its in-state service representatives with its bid was a variation from the ITB that could, for the reasons set forth in the findings of fact, give it an advantage not enjoyed by other bidders, such failure is not a minor irregularity and is not subject to waiver. Saxon Business Products, Inc. v. Department of General Services, 4 FALR 1102-A (1982).

       
       

   25. Mercedes' attempt to supplement its bid after the bid opening did not and cannot cure its failure to comply with the ITB. Rule 13A-1.001(13) Florida Administrative Code, provides:

       
       

       Valid Bid/Proposal - A responsive offer in full compliance with the bid/proposal specifications and conditions by a responsible person or

       firm. The responsiveness of the bid... will be determined as of the time the bids/proposals are made public. (Emphasis added)

       
       

   26. Pertinent to this recommended order, Marpan has requested an award of costs and attorney's fees against Mercedes a pursuant to Section 120.59(6), Florida Statutes, That section provides:

       
       

       1. In any proceeding pursuant to s.120.57(1), a prevailing party shall be entitled to recover costs from the nonprevailing adverse party, and shall also be entitled to recover a reasonable attorney's fee, as provided herein...

       2. The final order in a proceeding

          pursuant to s.120.57(1) shall award costs and a reasonable attorney's fee to the prevailing party only when the nonprevailing adverse party has been determined by the hearing officer to have participated in the proceeding for an improper purpose.

          * * *

          (e) For the purpose of this subsection:

          1. "Improper purpose" means participation in a proceeding pursuant to s.120.57(1) primarily to harass or to cause unnecessary delay or for frivolous purpose or needlessly increase the cost of licensing or securing the approval of an activity.

          * * *

          3. "Non prevailing adverse party" shall mean a party that has failed to have substantially changed the outcome of the proposed or final agency action which is the subject of a proceeding... In no event shall the term "nonprevailing party" or "prevailing party" be deemed to include any party that has intervened in a previously existing proceeding to support the

          position of the agency. (Emphasis added)

          
          

   27. While I have concluded that the subject protest was frivolous, Marpan, as the Intervenor in these proceedings, is not a prevailing party under section 120.59(6), and is, therefore, not entitled to the recovery of costs and attorney's fees pursuant to that section.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered dismissing the formal protest

filed by Mercedes Lighting and Electrical Supply, Inc.

DONE AND ENTERED In Tallahassee, Leon County, Florida, this 3rd day of June, 1988.

WILLIAM J. KENDRICK

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1050

Filed with the Clerk of the Division of Administrative Hearings this 3rd day of June, 1988.

ENDNOTES

1/ In addition to these two issues, Mercedes' formal protest also contended that (1) the bids submitted by the other bidders were nonresponsive and (2) that it should be permitted to supplement its bid with the in-state list of service representatives it filed with the Department after the bid opening. At hearing, Mercedes did not dispute the responsiveness of the bids submitted by Marpan or any other bidder. Whether Mercedes should be permitted to supplement its bid is addressed in the conclusions of law.

2/ While the demand for technical assistance under the state contract may not be frequent, the proof demonstrated that its need was real, and that the Department's inclusion of such a requirement as a condition of its ITB was reasonable.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 88-2211 BID

Mercedes' proposed findings of fact are addressed as follows:

1. Addressed in paragraphs 1 and 2.

2. Rejected as not necessary to the result reached or not relevant.

3. To the extent -pertinent, addressed in paragraph 10. Otherwise rejected as not necessary to the result

The Department's proposed findings of fact are addressed as follows:

1. Addressed in paragraph 1.

2. Addressed in paragraph 4.

3. Addressed in paragraph 12.

4. Addressed in paragraphs 9 and 10.

5. Addressed in paragraphs 13-16.

6. Addressed in paragraph 12.

7. Addressed in paragraphs 2, 3, and 18.

8. Addressed in paragraph 3.

9. Addressed in paragraphs 6 and ,.

10. Addressed in paragraphs 13-16.

11. Addressed in paragraphs 4 and 8-12.

12. Not necessary to result reached since not disputed by Mercedes.

Marpan's proposed findings of fact are addressed as follows:

1. Addressed in paragraph 1.

2. Addressed in paragraph 4.

3 & 4. To the extent pertinent, addressed in paragraphs 13-16.

5 & 6. Addressed in paragraphs 5 and 6.

1. Addressed in paragraph 3.

2. Addressed in paragraph 17.

3. Addressed in paragraphs 9 and 10.

4. Addressed in paragraphs 13-16.

5. Addressed in paragraphs 12, 17 and 18.

6. Addressed in paragraph 19.

COPIES FURNISHED:

H. Christopher Bryant, Esq. Susan B. Kirkland, Esquire OERTEL & HOFFMAN, P.A. Robert D. Stinson

Post Office Box 6507 Department of General Services Tallahassee, FL 32314-6507 Room 452 - Larson Building

Tallahassee, Florida 32399-0955

General Electric Company Wholesale Independent Electric Post Office Box 16626 Supply

Tampa, Florida 33687 Post Office Box 8117

Pensacola, Florida 32505

N. A. Philips Lighting Corp. King Lighting Supply Post Office Box 025295 2031 13th Street

Miami, Florida 33102-5295 Sarasota, Florida 34237

Newark Electronics Stephen J. Kubik, Esquire

4140 Woodcock Drive 201 South Monroe Street

Suite 228 Suite 500

Jacksonville, Florida 32207 Tallahassee, Florida 32301

Ronald W. Thomas Executive Director Department of General

Services

Room 133, Larson Building Tallahassee, Florida 32399-0955

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MERCEDES LIGHTING AND )

ELECTRICAL SUPPLY, INC., )

)

Petitioner, )

)

vs. ) CASE No. 88-2211BID

) (Attorney's fees and costs) STATE OF FLORIDA, DEPARTMENT OF )

GENERAL SERVICES, )

)

Respondent, )

and )

) MARPAN SUPPLY COMPANY, INC., )

)

Intervenor. )

)

FINAL ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William J. Kendrick, held a formal hearing in the above-styled case on October 12, 1988, in Tallahassee, Florida.

APPEARANCES

For Petitioner: M. Christopher Bryant, Esquire

Ortel, Hoffman, Fernandez & Cole Post Office Box 6507 Tallahassee, Florida 32314-6507

For Respondent: Susan B. Kirkland, Esquire

Robert D. Stinson, Esquire Department of General Services Room 432, Larson Building

200 East Gaines Street Tallahassee, Florida 32399-0599

For Intervenor: Stephen J. Kubik, Esquire

Elise F. Judelle, Esquire

155 Office Plaza Drive Tallahassee, Florida 32301

PRELIMINARY STATEMENT

At issue in this proceeding are the amount of attorney's fees and costs to be awarded respondent, Department of General Services (Department) and intervenor, Marpan Supply Company, Inc. (Marpan), pursuant to Section 120.57(1)(b)5, Florida Statutes.

At hearing, the Department called as witnesses: Susan B. Kirkland, Robert

1. Stinson, Stephen Mathues, and Thomas M. Beason. The Department's exhibits 1-

   6, as well as a copy of the Department's final order in this case submitted post-hearing and marked "DGS Exhibit 7", were received into evidence. Marpan called as witnesses: Martha Harrell Hall, Thomas M. Beason, and Stephen J. Kubik. Marpan's exhibits 1-4 were received into evidence. Mercedes called no witnesses, but its exhibit 1, as well as the deposition of Christopher H. Bentley (marked exhibit 2), the deposition of Victor La Porta (marked exhibit 3), and the transcript of the hearing held May 13, 1988 (two volumes, marked exhibits 4A and 4B), submitted post-hearing, were received into evidence.

   Official recognition was taken of the Division's file No. 88-2211BID.

   
   

   The transcript of hearing was filed October 26, 1988, and the parties were granted leave to file proposed findings of fact. The parties' proposals have been addressed in the appendix to this final order.

   
   

   
   

   FINDINGS OF FACT

   
   

   Status of the case

   
   

   1. These proceedings arose as a result of an invitation to bid (ITB) issued by respondent, Department of General Services (Department), whereby the Department sought a 24-month term contract for the purchase of large lamps, photo lamps, and studio, theatre, television, and video lamps by all State of Florida agencies. The Department proposed to award the contract to intervenor, Marpan Supply Company, Inc. (Marpan), and petitioner, Mercedes Lighting and Electrical Supply, Inc. (Mercedes), protested the award.

      
      

   2. On May 13, 1988, a formal hearing was held on Mercedes' protest, which culminated in the entry of a recommended order, dated June 3, 1988, that Mercedes' bid protest be dismissed. Pertinent to this proceeding, the recommended order found, as fact, that Mercedes' protest was frivolous: that it presented no justifiable question for resolution, and was without basis in fact or in law. By final order, dated June 28, 1988, the Department adopted the findings of fact and conclusions of law set forth in the recommended order, and dismissed Mercedes' bid protest.

      
      

   3. Contemporaneously with the entry of the recommended order on Mercedes' bid ,protest, an order was entered by the hearing officer which granted the motions of the Department and Marpan for an award of attorney's fees and costs pursuant to Section 120.57(1) (b)5, Florida Statutes. That award was predicated on the finding, as set forth in the recommended order, that Mercedes' bid protest was frivolous. This hearing ensued to establish the amount of attorney's fees and costs to be awarded.

      
      

      The Department's claim for attorney's fees and costs

      
      

   4. Mercedes has stipulated that the Department's time records accurately reflect the time expended and services rendered by counsel for the Department. Mercedes disputes, however, the necessity for some of those services and, more particularly, the need for more than one attorney to represent the Department's interests.

      
      

   5. To this end, the proof demonstrates that three attorneys participated in the Department's defense at various stages of the bid dispute. Susan B. Kirkland was the lead attorney, and was assisted by Robert D. Stinson.

      Following the final hearing on the bid protest, Ms. Kirkland was on vacation for a brief period, and Stephen S. Mathues assisted Mr. Stinson during her absence.

   6. While the proof shows that more than one attorney participated in the defense at various stages through the resolution of this bid protest, it likewise establishes that their efforts were not duplicitous, and were necessitated by the short time frame mandated by statute to resolve bid disputes and the extensive discovery demands placed on the Department by Mercedes. Under such circumstances, although more than one attorney may have participated in depositions, hearings, and conferences, the presence of such additional counsel was warranted.

      
      

   7. Based on the evidence presented, Ms. Kirkland reasonably expended 46.5 hours through final hearing on the bid protest, and an additional 30 hours thereafter through the hearing on attorney's fees and costs. Mr. Stinson reasonably expended 62 hours through final hearing on the bid protest, and an additional 61.75 hours thereafter through the hearing on attorney's fees and costs. Mr. Mathues reasonably expended 23.75 hours following the final hearing on the bid protest.

      
      

   8. A reasonable hourly rate for the Department's counsel is as follows: Ms. Kirkland, $125 per hour; Mr. Stinson, $100 per hour; and Mr. Mathues, $100 per hour. Such rates are compatible with the rate charged in the community by lawyers of reasonably comparable skill, experience and reputation for similar services.

      
      

   9. Applying the foregoing findings, derives a reasonable, fee for the services rendered by the Department's counsel, as follows:

      
      

      Ms. Kirkland	-	$ 9,562.50
      Mr. Stinson	-	12,375.00
      Mr. Mathues	-	2,375.00
      Total	-	$24,312.50

      
      

   10. The costs incident to the bid protest which the Department seeks to recover total $653.95. Mercedes does not dispute the reasonableness or propriety of these costs. Additionally, the Department seeks to tax, as costs, an expert witness fee for Thomas M. Beason, attorney-at-law, incident to his testimony concerning the reasonableness of the fees sought by the Department. To this end, the proof demonstrates that a reasonable fee for Mr. Beason's services is $1,075.

       
       

       Marpan's claim for attorney's fees and costs

       
       

   11. Based on the time records of Marpan's counsel, Steven J. Kubik, and the evidence received as to the reasonableness of those time expenditures, it is found that Mr. Kubik reasonably expended 86 hours through final hearing on the bid protest, and an additional 76.25 hours thereafter through the hearing on attorney's fees and costs. 1/

       
       

   12. In light of Mercedes' stipulation that a reasonable hourly rate for Mr. Kubik's services is $125, the proof derives a reasonable fee for his services to be $20,281.25.

       
       

   13. The costs which Marpan seeks to recover total $1,174.31. Of these costs, Mercedes does not dispute the reasonableness or propriety of $634.31. Of the balance, Mercedes disputes the reasonableness and propriety of Marpan's claim of $472.96 associated with travel to Orlando for depositions on the bid protest, and the propriety of Marpan's claim for copying ($27.40), telephone

       calls ($7.20), and for a copy of the transcript of hearing on Mercedes' motion for reconsideration of attorney's fee award ($33), incurred incident to its claim for attorney's fees and costs.

       
       

   14. With regard to the costs incurred by Marpan for Mr. Kubik to travel to Orlando and participate in the depositions scheduled by Mercedes during the bid protest, the proof demonstrates that Marpan's claim of $472.96 is composed of the following expenses: Air fare ($252.00), car rental ($39.47), parking ($4.00), hotel ($117.72), meals ($19.62), drinks ($16.00), tips ($3.00), and laundry service ($21.15). Mr. Kubik's participation in these depositions was reasonable and necessary to his representation of Marpan in the bid protest.

       
       

       CONCLUSIONS OF LAW

       
       

   15. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Section 120.57(1) (b)5, Florida Statutes.

       
       

   16. By order of June 3, 1988, the motions of the Department and Marpan for an award of attorney's fees and costs pursuant to Section 120.57(1)(b)5, Florida Statutes, were granted. The predicate for that award was a finding that Mercedes' bid protest was frivolous.

       
       

   17. In determining a reasonable attorney's fee to be awarded the Department, and Marpan, the criteria set forth in Disciplinary Rule 2-106(b) of The Florida Bar Code of Professional Responsibility and the methodology established in Florida Patient's Compensation Fund V. Rowe, 472 So.2d 1145 (Fla. 1985) have been applied.

       
       

   18. A reasonable fee, under the methodology established by Florida Patient's Compensation Fund v. Rowe, supra, is determined by multiplying the hours reasonably expended by the reasonable hourly rate. The result produces the "lodestar figure" which, if appropriate, may be adjusted because of a "contingency risk" factor or the "results obtained". Under the facts of this case, there was no basis to adjust the "lodestar figure" of $24,312.50 as a reasonable fee for services rendered on behalf of the Department and of

       $20,281.25 as a reasonable fee for services rendered on behalf of Marpan. 2/ These fees appropriately, include fees incurred in the bid protest, as well as those incurred incident to the fee award. Tiedeman v. City of Miami, 529 So.2d 1266 (Fla. 3d DCA 1988), and Castaway Lounge of Bay County, Inc. v. Reid, 411 So.2d 282 (Fla. 1st DCA 1982).

       
       

   19. The Department's costs incident to the bid protest in the sum of

$653.95, which Mercedes does not contest, as well as the expert witness fee of Mr. Beason in the sum of $1,075, area recoverable. See e.g., Tiedeman v. City of Miami, supra. Likewise, Marpan's costs incident to the bid protest in the sum of $634.,31, which Mercedes does not contest, as well as the sum of $34.60 for costs incurred incident to the fee award are recoverable. Marpan's cost of $33 for a copy of the transcript of the hearing on Mercedes' motion for reconsideration of the attorney fee award is not recoverable, since it was not shown that such cost was reasonably and necessarily incurred in this case.

Marpan's claim of $472.96 for travel expense is disallowed. Florida Gas Co. v. Spectra-Physics, Inc., 406 So.2d 1280 (Fla. 1st DCA 1981).

CONCLUSION

Based on the foregoing findings of fact and conclusions of law, it is ORDERED that:

1. The Department of General Services recover from Mercedes Lighting and Electrical Supply, Inc., a reasonable attorney's fee in the sum of $24,312.50 and costs in the sum of $1,728.95, and

   
   

2. Marpan Supply Company, Inc., recover from Mercedes Lighting and Electrical Supply, Inc., a reasonable attorney's fee in the sum of $20,281.25 and costs in the sum of $668.91.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 27th day of December, 1988.

WILLIAM J. KENDRICK

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway'

Tallahassee, Florida 32399-1050

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 27th day of December, 1988.

ENDNOTES

1/ Mr. Kubik also claims an additional 2.5 hours for work done by another attorney in his firm, Randall W. Hanna. Recovery for such time cannot, however, be had since Marpan failed to establish the prevailing "market rate" for Mr.

Hanna. See: Florida Patient's Compensation Fund V. Rowe, 472 So.2d 1145 (Fla. 1985).

2/ In rendering the award to the Department, the fact that its counsel are employees of the State of Florida has not been overlooked. However, where, as here, the statute provides for the recovery of a "reasonable attorney's fee", the proper award is based on the generally prevailing market rate for attorneys with comparable skills, experience and reputation. City of Boca Raton v. Faith Baptist Church, 423 So.2d 1021 (Fla. 4th DCA 1982).

APPENDIX

Mercedes' proposed findings of fact are addressed as follows:

1-6. These proposals are recitations of testimony or evidence and not findings of fact. As such, they are subordinate to the findings addressed in paragraphs 7-9.

7-14. To the extent pertinent or not recitations of testimony or evidence, addressed in paragraphs 4-9.

15-20. To the extent pertinent, or nor recitations of testimony or proof, addressed in paragraph 13 and 14.

21. Addressed in paragraphs 13 and 14.

The Department's proposed findings of fact are addressed as follows: 1-12. Addressed in paragraphs 4-10. Otherwise rejected as

subordinate or cumulative.

Marpan's proposed findings of fact are addressed as follows:

A. 1-3. Addressed in paragraphs 11 and 12. Otherwise rejected as subordinate. Addressed in paragraphs 13 and 14. Otherwise rejected as subordinate or a conclusion of law.

COPIES FURNISHED:

M. Christopher Bryant, Esquire OERTEL & HOFFMAN, P.A.

Post Office Box 6507 Tallahassee, FL 32314-6507

Susan B. Kirkland, Esquire Robert D. Stinson, Esquire Department of General Services Room 432, Larson Building

200 East Gaines Street Tallahassee, Florida 32399-0599

Stephen J. Kubik, Esquire Elise F. Judelle, Esquire

155 Office Plaza Drive Tallahassee, Florida 32301

Ronald W. Thomas, Executive Director Department of General Services

133 Larson Building Tallahassee, Florida 32399-0955

A 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.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MERCEDES LIGHTING AND )

ELECTRICAL SUPPLY, INC., )

)

Petitioner, )

)

vs. ) CASE No. 88-2211BID

) STATE OF FLORIDA, DEPARTMENT ) OF GENERAL SERVICES, )

)

Respondent, )

and )

) MARPAN SUPPLY COMPANY, INC., )

)

Intervenor. )

)

AMENDED FINAL ORDER

On June 3, 1988, an order was entered in the above-styled matter which granted the motions of the Department of General Services (Department) and Marpan Supply Company, Inc. (Marpan), for an award of attorneys fees and costs against Mercedes Lighting and Electrical Supply, Inc. (Mercedes). Thereafter, on October 12, 1988, a hearing was held to assess fees and costs, and on December 27, 1988, a final order was entered which awarded the Department attorneys fees of $24,312.50 and costs in the sum of $1,728.95 against Mercedes, and which awarded Marpan attorneys fees of $20,281.25 and costs in the sum of

$668.91 against Mercedes.

Following entry of the final order, Mercedes took an appeal to the First District Court of Appeal. By opinion filed April 16, 1990, that court reversed the award of fees and costs against Mercedes. By mandate issued May 17, 1990, the court directed that further proceedings be had in accordance with its opinion.

In light of the foregoing, it is ORDERED that:

1. The order of June 3, 1988, which granted the motions of the Department and Marpan for an award of attorneys fees and cost against Mercedes and the final order of December 27, 1988, which assessed such fees and costs are vacated.

   
   

2. The opinion of the First District Court of Appeal dated April 16, 1990, is hereby adopted as the final order of the Division of Administrative Hearings.

DONE AND ORDERED in Tallahassee, Leon County, Florida this 7th day of June 1990.

WILLIAM J. KENDRICK

Hearing Officer

The DeSoto Building 1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 7th day of June 1990.

COPIES FURNISHED:

M. Christopher Bryant, Esquire ORTEL, HOFFMAN, FERNANDEZ

& COLE, P.A.

Post Office Box 6507 Tallahassee, Florida 32301

Susan B. Kirkland, Esquire Department of General Services Office of General Counsel Knight Building

Suite 309

2737 Centerview Drive

Tallahassee, Florida 32399-0950

Stephen J. Kubik, Esquire

155 Office Plaza Tallahassee, Florida 32302

Ronald W. Thomas Executive Director

Department of General Services Knight Building

Koger Executive Center 2737 Centerview Drive

Tallahassee, Florida 32399-0950

NOTICE OF RIGHT TO JUDICIAL REVIEW A 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.

Docket for Case No: 88-002211BID

Orders for Case No: 88-002211BID