SCOTT TIBBETTS, )
)
Intervenor. )
)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was held in this case on October 31, 1988, at LaBelle, Florida, before Veronica E. Donnelly, a duly designated Hearing Officer of the Division of Administrative Hearings. Appearances for the parties at the hearing were as follows:
For Petitioner: Owen L. Luckey, Jr., Esquire
Luckey, Elver & Sloan Post Office Drawer 1820 La Belle, Florida 33935
For Respondent: Anthony DeLuccia, Jr., Esquire
District 8 Legal Counsel Department of Health and Rehabilitative Services Post Office Box 06085 Fort Myers, Florida 33906
For Intervenor: R. Scott Tibbetts, pro se
215 20th Street West Bradenton, Florida 34205
The Petitioner, EARL S. DYESS, JR., (hereinafter referred to as Dyess) timely filed a written notice of protest when the Respondent, DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, (hereinafter the Department) made its decision to award the bid referred to as Lease Number 590:1975 to the Intervenor, R. Scott Tibbetts, as the lowest responsive bidder. The purpose of the Department's Invitation to Bid was to obtain a lease on an existing facility which contains 7,962 square feet of net rentable office space in Clewiston, Florida. A lease term of eight years with five two year renewal option periods was desired by the Department.
When the bids were evaluated to determine technical responsiveness, Dyess's bid was disqualified because it was determined by the Department that the bid did not meet the specifications set forth in the bid documents. Dyess contends that his bid was within the specifications as outlined in the bid documents, and as the low bidder, he should receive the contract award. Upon receipt of the protest, the Department sent the case to the Division of Administrative Hearings for a hearing, pursuant to Section 120.53, Florida Statutes.
Pursuant to rule, the Department notified the other bidders in Lease Number 590:1975 of the scheduled hearing and their opportunity to intervene. R. SCOTT TIBBETTS (hereinafter Tibbetts) filed a request to Intervene, and was granted intervention status in these proceedings.
During the hearing, the Petitioner submitted the deposition of Michael Sedgwick, called two witnesses and submitted seventeen exhibits. The Respondent called two witless and submitted one exhibit. The Intervenor cross-examined various witnesses and submitted one exhibit. All of the exhibits and the deposition were admitted into evidence. A transcript of the hearing was received by December 12, 1988.
After the evidentiary portion of this administrative proceeding, a rule challenge petition was filed by the Petitioner. As the rule challenge involved an issue which was central to this proceeding, Case No. 88-3791BID was placed in abeyance until the Final Order was entered in Case No. 88-5941R. This case was reactivated on February 22, 1989, and proposed recommended orders were filed by the Petitioner and the Respondent on or before March 8, 1989. The opportunity to submit proposed findings of fact was waived by the Intervenor in this proceeding. Rulings on the proposed findings of fact are in the Appendix of the Recommended Order.
ISSUES
Whether the Petitioner was the lowest responsive bidder in Lease No.
590:1975, and therefore entitled to the contract award.
FINDINGS OF FACT
In 1988, the Department made the determination that it would not exercise its option on leased space owned by the Petitioner Dyess, in Clewiston, Florida.
Bid documents were prepared by the agency for its current office space needs. Bid proposals were solicited through newspaper advertisements and personal contact with owners, developers, and realtors within the Clewiston area. The Department included Dyess in its solicitations. He was sent an Invitation to Bid for Existing Facilities by the Department. This bid package contained all of the bid documents for the bid referred to as Lease Number 590:1975.
The Invitation to Bid was issued by the Department for approximately 7,962 square feet of net rentable office space in Clewiston, Florida. The invitation was prepared using HRS Facilities Form R01-87.
The form used by the Department for soliciting and accepting competitive proposals for the leased space was required to comply with all conditions and requirements adopted by the Department of General Services, as set forth in Rule 13M-1.015(3)(e), Florida Administrative Code. The Department
of General Services is the agency which administers real property leasing for the State of Florida for leased space of 2,000 square feet or more in privately owned buildings.
During the bidders' conference held on April 26, 1988, Mr. Michael J. Sedgwick, the agency's representative, was questioned about the agency's interpretation of the term "dry and capable of being physically measured" which is set forth on page two of the Invitation to Bid and page three of the Bid Submittal Form. Page two of the Invitation to Bid is a glossary which defines various terms used within the bid documents. The term "existing building" is defined as follows:
To be considered as existing, the entire space being bid must be dry and capable of being physically measured to determine net rental square footage at the time of the bid submittal.
Paragraph 10 on page three of the Bid Submittal Form reiterates the definition of an "existing building" as set forth in the Invitation to Bid. The language in the bid documents which defines the term "existing building" is identical to the language in Form BPN 4136, which has been promulgated as a rule by the Department of General Services as the format for specifications for the solicitation of leased spaces by the State of Florida.
In response to the request for an interpretation, Mr. Sedgwick contacted Mr. George Smith, who administers the leasing program for the Department in Tallahassee, and obtained the following definition: "Dry and measurable" consists of four things: a slab, four corners, a roof, and a valid building permit if construction is in progress.
The definition given by Mr. Smith was verbally communicated to the prospective bidders who attended the conference. This definition was verbally communicated to the Petitioner by Mr. Sedgwick on April 27, 1988.
The Petitioner timely submitted a bid in Lease Number 590:1975 on the Department's Bid submittal Form by May 24, 1988. On page three of this form, each bidder was required to acknowledge the bid requirements contained on that page by placing his initials in the bottom right hand corner. The Petitioner Dyess acknowledged the requirement that the proposed space must be an "existing building" at the time of the bid submittal.
On May 24, 1988, the date of the bid opening, Petitioner's building did not meet the requirements of an existing building as defined within the bid documents or the Department's verbal clarification of the definition. The building did not have a roof, a slab, or a valid building permit.
After the bids were opened, the District VIII Bid Evaluation Committee visited each of the proposed lease locations. When the Petitioner's proposed location was reviewed by the committee two days after the close of bids, the addition was found to consist of the following: two partially completed block walls which connected the two existing buildings. The existing buildings were still intact, but it was apparent that an expansion was taking place, and that the completed project would be one building. A slab had not yet been poured in the addition, and it was without a roof. The plans submitted to the Department with the Petitioner's bid suggested that this expansion was capable of producing the square footage required by the Department.
The City of Clewiston was aware of the Petitioner's expansion project, but he was not required by this authority to have a building permit at the time the project was viewed by the committee and evaluated by the Department.
The Petitioner's bid was rejected by the Department because, on the date of the bid submittal, the proposed addition was not an "existing building" as defined by the bid documents and the further verbal interpretation by the agency.
The bid submitted by the Intervenor Tibbetts did not contain the complete contract for the purchase of the property. However, the right to purchase was evidenced by a document submitted with the bid. Full Disclosure Statements of Ownership are not required under Rule 13N-1.015, Florida Administrative Code, until after a bid is awarded.
The property was not properly zoned at the time of the Intervenor Tibbetts' bid submittal.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Sections 120.53 and 120.57(1), Florida Statutes.
Section 255.249(2), Florida Statutes, provides that the Department of General Services shall promulgate rules providing for the solicitation and acceptance of competitive proposals for leases of 2,000 square feet or more in privately owned buildings. In response to this statutory requirement, the Department of General Services has promulgated as a rule, Form BPM 4136. This form provides the format for specifications for the solicitation of leased spaces for all state agencies. See Rule 13M-1.015(3)(e), Florida Administrative Code.
Form BPM 4136, on which HRS Facilities Form R01-87 is based, requires that the bidder must bid an existing building. An "existing building" is further defined within the bid specifications and the bid submittal forms used by both agencies as follows:
To be considered as existing, the entire space being bid must be dry and capable of being physically measured to determine net rental square footage at the time of the bid submittal.
The Department further defined the concept of "dry and measurable" to the Petitioner Dyess and those prospective bidders who attended the pre-bid conference as a building with four corners, a roof, a slab, and a valid building permit.
Under this interpretation of an "existing building," the Petitioner Dyess did not comply with the bid specifications on the date of his bid submittal because the addition did not have a slab or a roof. Because of these deficiencies, the Department properly rejected the Petitioner's bid as it was not responsive to the specifications in the Invitation to Bid. The bid did not meet the minimum requirements as set forth in the bid submittal form, as
interpreted by the Department for prospective bidders prior to their bid submissions.
In his challenge to the Intervenor Tibbetts' designation as the responsive low bidder, the Petitioner addressed matters which were not required by the bid submittal form. Although these matters may become important when a lease is executed, they are not subject to review by the Hearing Officer in the bid protest. Property ownership and zoning matters are handled in the leasing process after a bid award and before the execution of the lease. Rule 13M- 1.015, Florida Administrative Code. The Department has wide discretion in soliciting and accepting bids. Its decision, when based on an honest exercise of discretion, will not be overturned by a court even if it appears erroneous and even if reasonable persons may disagree. Eccelston Properties, Ltd. v. DHRS, et al., 11 FALR 1184 (Final Order 2-7-89); Department of Transportation v. Grove-Watkins Constructors, 530 So.2d 912 (Fla. 1988).
