STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CARMON S. BOONE, )

)

Petitioner, )

)

vs. ) CASE NO. 88-4900BID

) DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

)

Respondent, ) and )

)

PHILLIPS AND COMPANY, )

)

Intervenor. )

)

RECOMMENDED ORDER

This matter came on for hearing in Pensacola, Florida, before the Division of Administrative Hearings by its duly designated Hearing Officer, Diane Cleavinger, on October 24 and 26, 1988. The parties were represented as follows:

FOR PETITIONER: Jon W. Searcy, Esquire

314 South Baylen Street Pensacola, Florida 32573

Charles L. Hoffman, Jr., Esquire SHELL, FLEMING, DAVIS & MENGE

226 S. Palafox Street Post Office Box 1831 Pensacola, Florida 32598

FOR RESPONDENT: Rodney Johnson, Esquire

District One Legal Counsel Department of Health and Rehabilitative Services

160 Government Street Pensacola, Florida 32501

FOR INTERVENOR: Jesse W. Rigby, Esquire

CLARK PARTINGTON, HART, LARRY, BOND, STACKHOUSE & STONE

Suite 800, First Florida Building

125 West Romana Street Pensacola, Florida 32501

The issues addressed in this proceeding are 1) Was the District Administrator's decision to award the lease to Phillips and Company as being the "lowest and best bid" fraudulent, arbitrary, illegal or dishonest? 2) Was there

a proper evaluation of life cycle costs and was there a showing that the life cycle costs of the Phillips building were minimal compared to available like facilities as required by Section 255.254, Florida Statute.

Petitioner called six witnesses and introduced four exhibits. Respondent called two witnesses and did not introduce any exhibits. Intervenor called one witness and introduced one exhibit. Additionally, twelve exhibits were stipulated to by the parties and admitted into evidence including the deposition testimony of Malcolm McKenzie, Cherie Neal and Darlene McFarland.

Petitioner, Respondent and Intervenor filed their proposed recommended orders on November 14, 1988. The parties' proposed findings of fact have been considered and utilized in the preparation of this Recommended Order except where such proposals were not supported by the weight of the evidence or were immaterial, cumulative or subordinate. Specific rulings on the parties' proposed findings of fact are contained in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Prior to June, 1988, HRS determined that it needed 32,000 square feet of office space to house some of its indigent social services for southern Escambia County. Since the desired office space is greater than 2,000 square feet HRS was required to competitively bid lease number 590:1984. Towards that end, Respondent prepared an Invitation to Bid and a bid submittal package. The package contained various bid specifications, bid evaluation criteria and the numerical weight assigned to each of those criteria. Specific areas of importance to Respondent in the selection of its office space were:

   
   

   1. client safety

   2. one building to house all its units

   3. employee morale

   4. moving costs

   5. traffic flow within the building

   6. public access

      
      

2. Many of the above areas were important to HRS since the agency would render indigent services to approximately 17,000 people a month, many of whom are handicapped or lack good mobility due to age or infirmity. Employee morale was important because of high employee burn out due to rendering aid to so many people who have so little and supplying a pleasant environment conducive to the work of the employees. Moving costs were important should HRS be required to find other space to operate in while necessary remodeling took place in the selected building, or be required to incur the expense of moving to a new building. 1/ All of the above areas were covered by one of Respondent's weighted bid evaluation criteria.

   
   

3. The District Administrator of HRS, Chelene Schembera, is ultimately responsible for bidding, selection and leasing of all HRS facilities within District I, including Escambia County, Florida. In order to accomplish this task, Ms. Schembera appointed a bid evaluation committee to review and grade the responsive bids under the criteria established in the bid package, and to recommend to her the committee's choice of the lowest and best bid.

   
   

4. Ms. Schembera's purpose in establishing the bid evaluation committee was to secure a cross section of input from people who had a variety of backgrounds and knowledge that would be material in evaluating the office space

   under the uses for which it was intended and the relative public worth of the work space. Ms. Schembera appointed individual who were familiar with the type of work to be done in the proposed space, as well as a persons familiar with the bid process.

   
   

5. Ms. Schembera assigned to serve on the committee Charles Bates, Deputy District Administrator; Jim Peters, to provide a fiscal and overall administrative perspective as well as bid expertise; two citizens from the District Advisory Council to assure objectivity and to look at the properties from the perspective of a private citizen; Mamun Rashied, a program manager; Darlene McFarland, a program manager; Cherie Neal, a unit supervisor and program worker; and Stacey Cassidy, a clerical employee.

   
   

6. Ms. Schembera did not personally know Cherie Neal or Stacey Cassidy. These staff members were designated by the supervisors upon Ms. Schembera's direction that she wanted persons who were both intelligent and respected by their peers. One private citizen member of the committee did not participate.

   
   

7. The committee as constituted showed a great deal of thought on Ms. Schembera's part to ensure the objectivity of the bid process she was engaging in and to ensure the maximum amount of input from persons who had experience relevant to the overall review of the proposed real estate and to the decision they were being asked to make. The selection of the bid evaluation committee members was neither an arbitrary nor capricious act on Ms. Schembera's part. In fact, the evidence demonstrated the merit in constituting the committee as she did for the input she sought.

   
   

8. The bid evaluation committee members, minus Mr. Bates, were briefed on their duties by Joe Pastucha, Facilities Services Manager. Mr. Pastucha is part of the staff responsible for the bid process at HRS. He provided these committee members with the weighted bid evaluation criteria found at page 15 in the bid package. He also gave the committee members a copy of Chapter 5 of the HRS manual containing guidelines for the bid process. His verbal instructions on specific procedures to follow in the evaluation process were limited since he did not wish to improperly influence the committee members.

   
   

9. On July 20, 1988, HRS received three bids responding to its invitation to bid on Lease Number 590:1984. Bid A was submitted by Phillips and Company, the apparent second lowest bidder and Intervenor in this case. Its property consisted of one multi-story building located at 1740 North Palafox Street, Pensacola, Florida. Bid B was not responsive and therefore was not considered by HRS and is not a part of this litigation. Bid C was submitted by Petitioner Carmon S. Boone, and was the apparent low bid. Mr. Boone's property consisted of two buildings located at 401 and 411 North Baylen Street, Pensacola, Florida. The Boone property is the present location of Respondent's offices. Both Bid A and Bid C were within the mandatory geographical area designated in the bid package.

   
   

10. Once the bids were received the bid evaluation committee began its work. The committee members, minus Mr. Bates, visited the Phillips property. However, the members did not visit the Boone property. There was no need. Four of the members currently worked at the Boone property and the other members had previously visited the Boone property on various other occasions. Mr. Bates was likewise already familiar with both properties. All members were sufficiently familiar with the cogent aspects of each property to allow them to make a rational decision.

11. The bid evaluation committee, minus Mr. Bates, met as a group to evaluate each property in accordance with the weighted bid evaluation criteria. Each individual scored their sheets separately and the general consensus was supportive of recommending the Phillips property.

    
    

12. Five committee members scored Mr. Phillips' property higher than the Boone property. The one exception was Mr. Peters who felt that HRS could not support a bid awarded for other than monetary reasons, i.e., he felt the lowest bid had to be accepted. Mr. Bates later reviewed all the bid synopsis sheets of the committee members and discussed the bid award with Mr. Peters and Mr. Pastucha. Mr. Bates felt that the Phillips property was the lowest and best bid.

    
    

13. At about the same time, the staff responsible for providing technical assistance to the committee and the District Administrator were made aware that the general consensus of the committee was leaning towards the second lowest bidder, Phillips and Company, as the lowest and best bid. The staff members, one of whom was a bid committee member, disagreed with the award of the bid to Phillips and Company because the Boone property was the lower bid. The staff members sought to head off the committee's intended recommendation. The staff personnel held a meeting with some of the committee members in order to get them to join in a recommendation to Ms. Schembera of the Boone property. Mr. Boone was invited and attended the meeting. He was allowed to improperly bolster his bid by agreeing to convert the two buildings to one and other lesser additions.

    /2 The potential decision was discussed, but no committee member changed his or her mind. However, through a total lack of communication, a run away staff somehow rationalized themselves into a position of being authorized to submit a letter for Ms. Schembera's signature which awarded the Boone property the lease.

    
    

14. Ms. Schembera became aware of her staff's attempt to subvert the bid process she had established. She refused to sign the letter submitted by the staff. She removed the staff member of the committee as a voting member. The staff member had supported the Boone property. She also removed a committee member who supported the Phillips property as a voting member. Ms. Schembera feared that her staff had improperly influenced this member to such an extent that his objectivity had been affected. Both members could still participate in committee discussions. Ms. Schembera thereby reasonably ensured the ongoing objectivity of the bid evaluation committee.

    
    

15. The committee was reconvened, minus one member. It recommended the Phillips and Company property. Every reason given by the individual committee members for distinguishing and preferring one bid over another were rational and reasonable considerations and were covered by the bid evaluation criteria. Each individual member gave a rational and reasonable basis for the scoring he or she used on the bid synopsis score sheets. The scoring was done by each member after discussion of the two buildings and without influence from the other committee members. In essence, the committee felt that the Phillips property was the better property for the money. The Phillips property allowed working units to be located in one area with each such unit having its own access. It provided flat safe parking areas and sidewalks, bigger and more elevators, wide halls and windows which presented a bright, happy and pleasant working environment. The Boone property was in two buildings which could not accommodate co-located working units with their own access no matter how much remodeling took place. Parking and sidewalks are on a hill which is slippery when wet. It had one small elevator and narrow halls which did not adequately accommodate more than one wheel chair, and one ground floor where no windows could ever be remodeled into the building leaving a dark, dingy and unpleasant

    environment. Importantly, every committee member except for the staff member came to the conclusion that the Phillips and Company property was the lowest and best bid. There is no statutory or rule requirement that one scoring method be preferred over another. The only requirement is that the method be rational and reasonable especially where highly subjective, but legitimate criteria are involved in the selection of a particular piece of property. On these facts, the individual scoring methods used by the individual committee members were not arbitrary and capricious, but were very rational and reasonably related to the relative importance the committee members gave the above factors.

    
    

16. After reviewing and considering information from the bid evaluation committee, the information on the bid synopsis sheet, and the oral recommendations of Mr. Bates, Mr. Peters and Mr. Pastucha, Ms. Schembera concluded that the Phillips property was vastly better, even considering costs. She found it to be materially superior in terms of construction, organization, client accessibility, handicap accessibility, repairability (in terms of walls), and maneuverability for clients and staff. She felt the Phillips' building's qualities would offer more "humanity" to the process of serving the Department's clients. Additional facts she considered when making her decision included the morale of the staff and their productivity; the ability of staff and clients to conduct their business in a reasonably pleasant, comfortable, safe, and easy to understand and comprehend environment; and the desire to provide a minimally adequate work space. In addition to other monetary costs, she considered energy costs and life cycle costs as reflected on the bid synopsis sheet.

    
    

17. The bid synopsis sheet defined minimal energy and life cycle costs to be anything less than 55 BTU's per square feet per year. In this case, the Boone property reflected 39.5 BTU's per square feet and the Phillips property reflected 53.5 BTU's per square feet. Both properties were under the 55 BTU cutoff established by HRS. Translated into monetary figures (life cycle costs) the Boone property reflected a cost of $26,735.00 and the Phillips property reflected a cost of $41,160.00. It was the difference between the energy figures which caught Ms. Schembera's eye. In her layman's opinion, it was incomprehensible that the two buildings would have such a wide divergence of energy costs. /3 She learned from her staff that the information used to compute these costs was supplied by the bidders who had vested interests in the outcome. Ms. Schembera concluded the cost difference was minimal and not of overriding concern in relation to the physical characteristics of the two buildings and how they compared to each other. She quite correctly felt the two buildings were not comparable. In essence, the two buildings' differences in design location and construction rendered neither building comparable to the other building as a like facility under Section 255.254, Florida Statutes. 4/ Based on that information she gave the energy figures relatively little weight.

    
    

18. More importantly, however, before the final bid award was made by HRS, the Division of General Services within HRS in its failsafe role in reviewing bids considered the life cycle cost figures of the two bids. The minimal language of Section 255.254, Florida Statutes, has been interpreted by HRS to mean that anything under 55 BTU's is minimal and except in one instance not applicable here, numerical differences under 55 BTU's are immaterial. The Division, without getting into the issue of the likeness of the facilities, concluded that both bids met the Department's interpretation of the "minimal" language of Section 255.254, Florida Statutes, and the relative numerical difference in the energy costs was immaterial. Ms. Schembera is entitled to rely on other more expert HRS Division staff to ensure a proper analysis of highly technical bid specifications such as the energy cost analysis required under Section 255.254, Florida Statutes. It does not matter that the review

    took place after Ms. Schembera had made her preliminary decision. What is important is that the review be made either personal or vicariously through staff before the final award is made. A proper review of energy costs was, therefore, made by Respondent before the final award was made. Likewise, Ms. Schembera's ultimate decision that the buildings were not comparable like facilities was a proper review of energy costs even though that conclusion was arrived at through a layman's unsophisticated, but more accurate intuition and common sense.

    
    

19. To that extent, the energy cost data had no impact on the ultimate choice made by the District Administrator and were properly considered by the District Administrator. 5/

    
    

20. A letter for Ms. Schembera's signature adopting the committee's recommendation was drafted by Mr. Pastucha. The letter was signed and sent to the Department's Division of General Services for review.

    
    

21. The District was requested to provide additional justification for its choice by the Department's Division of General Services.

    
    

22. Mr. Rashied was directed to draft the response. He simply reorganized the original memorandum into a format more compatible with the Division's direction, clarified a few points and without significantly changing the content, submitted the response as directed. The Division acquiesced in Ms. Schembera's decision.

    
    

    CONCLUSIONS OF LAW

    
    

23. 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.

    
    

24. The system of competitive bidding protects against collusion, favoritism, and fraud in the award of public contracts. Liberty County v. Baxter's Asphalt and Concrete, Inc., 421 So.2d 505 (Fla. 1982). A public body has wide discretion in soliciting and accepting bids for public improvements and its decision, when based on an honest exercise of this discretion, will not be overturned by a court even if it may appear erroneous and even if reasonable persons do not agree. Id.

    
    

25. The scope of the administrative hearing in a challenge to the agency's decision to award or reject bids is limited to whether the purpose of competitive bidding has been subverted. The hearing officer's responsibility is to ascertain whether the agency acted fraudulently, arbitrarily, illegally, or dishonestly. Department of Transportation v. Groves-Watkins Constructors, 530 So.2d 912 (Fla. 1988). The burden is on the petitioner to show by a preponderance of the evidence that the action of the Department in awarding the bid to Phillips and Company was fraudulent, arbitrary, illegal, or dishonest.

    
    

26. Ms. Schembera, District Administrator, District One, Department of Health and Rehabilitative Services, had the statutory authority, granted by Section 20.18(5)(c), to award the lease to the lowest and best competitive bidder as required by Section 255.25(3)(a), Florida Statutes (1987). There is absolutely no evidence in the record that Ms. Schembera acted fraudulently, illegally, or dishonestly, or in any fashion other than with due consideration for the best interest of the State of Florida and the Department of Health and Rehabilitative Services. Furthermore, Ms. Schembera acted within the discretion

    granted by the law and not arbitrarily or capriciously in making her decision to award the lease to Phillips and Company. Her justification, as set forth in the findings of fact, provides a logical and rational basis for her decision. The conclusion reached by Ms. Schembera that Phillips and Company offered the lowest and best bid is amply supported by the record.

    
    

27. Petitioner offered the testimony of Mary Goodman, Chief of Bureau of Property Management, Department of General Services, and argued on the basis of that testimony that Section 255.254(1), Florida Statutes (1987), required that the lease in this case be awarded to Mr. Boone, irrespective of the District Administrator's decision that the lowest and best bid was offered by Phillips and Company. Section 255.254(1), Florida Statutes, states:

    
    

    (1) No state agency shall lease, construct, or have constructed, within limits prescribed herein, a facility without having secured from the division a proper evaluation of life cycle costs, as computed by an architect or engineer. Furthermore, construction shall proceed only upon disclosing, for the facility chosen, the life cycle costs as determined in Section 255.255 and the capitalization of the initial construction costs of the building. The life cycle costs shall be a primary consideration in the selection of a building design. Such analysis shall be required only for construction of buildings with an area of 5,000 square feet or greater within a given building boundary, a life cycle analysis shall be performed, and a lease shall only be made where there is a showing that the life cycle costs are minimal compared to available like facilities.

    
    

28. Ms. Goodman testified that Section 255.254, Florida Statutes, serves to override or impliedly repeal the statutory requirement that an agency seek competitive bids for buildings over 2,000 square feet and to award the bid to the lowest and best bidder. Her testimony was that Section 255.25, Florida Statutes, is the controlling statute for leases above 2,000 square feet, but less than 20,000 square feet, while Section 255.254, Florida Statutes, controls for leases above 20,000 square feet. She testified that the only qualification is when the difference in energy cost as reflected by the Energy Performance Index (EPI) reflects only a minimal difference, defined by Ms. Goodman as between one and three points. As can be seen, Ms. Goodman's interpretation of the language of Section 255.254, Florida Statutes, would completely eradicate the competitive bidding process for leases over 20,000 square feet. Under her interpretation the only criterion an agency may consider in the bid process for leases over 20,000 square feet are the highly unreliable energy cost calculations supplied by the Department of General Services and which is lower.

    
    

29. The petitioner's argument based upon Ms. Goodman's testimony is not persuasive. There is no indication that the legislature intended for Section

    255.254 to override or impliedly repeal the competitive bid statute for buildings over 20,000 square feet. It is illogical to conclude that the larger

    the lease of a private building in terms of square footage, the less emphasis that should be placed on competitive bidding. As noted above, the purpose of competitive bidding is to protect the public interest by preventing collusion, favoritism, and fraud in the award of public contracts. The natural consequence of following Ms. Goodman's advice would be to invite fraud and collusion in those competitively bid leases greater than 20,000 square feet. The likelihood of collusion and fraud is increased for larger leases because of the greater monetary interest involved in the lease.

    
    

30. The fallacy of the petitioner's reliance upon Ms. Goodman's testimony is even more apparent when one considers that the data upon which the Department of General Services computes the life cycle cost, EPI index, and anticipated annual energy costs is supplied by the individual bidders who have a vested interest in the outcome of the determination. As is readily apparent from the testimony in this case, these calculations do not necessarily provide a good gauge as to the anticipated energy consumption, or energy costs to the state agency.

    
    

31. More importantly, however, is the manner in which HRS has interpreted the minimal language of Section 255.254(1), Florida Statutes. In essence, the agency considers any building under an Energy Performance Index of 55 BTU's to be reflective of a "minimal" difference between buildings. With one exception not relevant here, a BTU difference of 14 points would be immaterial under HRS' interpretation. Both bids submitted minimal energy costs. The energy cost difference between the Boone and Phillips buildings is immaterial and therefore, had no impact on the ultimate choice by Ms. Schembera.

    
    

32. Significantly, HRS's interpretation is set forth on the Bid Synopsis sheet. The Bid Synopsis sheet is required by the Department of General Services and is created in conjunction with and absent to the Department of General Services' approval. HRS's interpretation is entitled to great weight and is a reasonable interpretation of Subsection 255.254(1), Florida Statutes. In fact, HRS's interpretation would appear to be more reasonable than Ms. Goodman's interpretation since it allows both statutes to function regardless of the square footage involved. Section 255.254(1), Florida Statutes, therefore, should not be read to override the competitive bid statute.

    
    

33. Given HRS's interpretation, the energy costs and life cycle costs were properly considered by Respondent. The fact that Ms. Schembera personally gave relatively little weight to the energy figures provided by the Department of General Services is immaterial given the amount of staff review by Respondent's own staff and Division of General Services. All their input feeds into and can serve as a basis for the ultimate decision by Ms. Schembera. In that regard, no arbitrary, capricious or illegal action was taken by HRS.

    
    

34. However, Ms. Schembera made the ultimate decision that the two properties were not like comparable facilities. Since the facilities were not like facilities the strictures of Section 255.254(1), Florida Statutes, do not come into play. Ms. Schembera, therefore, properly considered the energy costs contained in the two bids. No arbitrary, capricious or illegal action was taken by HRS.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:

That the Department of Health and Rehabilitative Services enter a final order dismissing Case NO. 88-4900BID, and awarding lease number 590:1984 to Phillips and Company as the lowest and best bidder.

DONE and ORDERED this 5th day of January, 1989, in Tallahassee, Florida.

DIANE CLEAVINGER

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 5th day of January, 1988.

ENDNOTES

1/ In actuality the double rent definition of moving costs worked against only one bidder, the current landlord. However, the evidence clearly established that such a move would be necessary should the current landlord receive the bid award. The fact that such a criterion works against a particular bidder is irrelevant if in fact the agency would have to expend state funds for that purpose. If that is the case, then the agency should take those expenses into consideration.

2/ These additional promises by Mr. Boone were not mere clarifications of his bid. They were, in fact, significant amendments to his bid working to his advantage and as such were improper and cannot be considered here.

3/ It would appear that Ms. Schembera was accurate in her assessment of the relative worth of the energy cost and life cycle cost calculations required by Section 255.254, Florida Statutes. The actual energy costs to HRS for operations for the twelve month period ending in July 1988 was $38,918.51 for

411 Baylen Street and $6,832.80 for 401 Baylen Street for a total of $45,751.31. Based on data submitted y each bidder, the projected annual energy cost for Mr. Boone's property was $26,735.00 and for Mr. Phillips' property was 41,160.00. The difference between the actual energy cost for the Boone property and the projected energy costs for the sam property speaks for itself.

Moreover, one reason for the disparity in the cost analysis between the two buildings is due to the fact that the raw data as to energy usage and square footage used by the bidders was not based on the same type of analysis.

Apparently, architects and engineers differ on the appropriate methodology used in obtaining the raw data supplied to the Department of General Services. Mr. Stephen Helentjaris, Division of Construction, Department of General Services,

performed the life cycle analysis for the two bids involved in this case. When Mr. Helentjaris utilized comparable energy usage data in those areas where the energy usage data should be the same, the anticipated annual energy costs for the two buildings would be $1.03 per square foot for Mr. Boone's bid and $1.01 per square foot for Mr. Phillips' bid.

4/ In this regard Goodman's testimony on the Department of is rejected. She was of the opinion that "like facilities" is defined solely by the amount of square footage involved in the buildings. This definition is erroneous when one looks at the relevant aspects of the life cycle cost analysis which relies heavily on construction and design information and on in place equipment such as lights and elevators. Moreover, even the Department of General Services' expert on life cycle costs stated that comparing the two buildings was like comparing apples to oranges.

5/ Respondent's interpretation of minimal energy costs is contained on the Bid Synopsis Sheet. That sheet is required by the Department of General Services. It is created by HRS in conjunction with the Department of General Services and with the Department of General Services' approval. Mary Goodman's testimony to the contrary is rejected. The above facts demonstrate that the worth of any calculation is highly dependent on the raw data being utilized. However, whatever the worth of these calculations the life cycle costs submitted in the bids were properly prepared pursuant to Section 255.254 and 255.255, Florida Statutes.

6/ The significance of the Division's acquiesence would seem immaterial since the District Administrator can override its input. The Division's function is more of an advisory capacity especially on highly technical bid specifications such as energy and life cycle cost and on whether the reasons justifying the District Administrator's award are sufficient to withstand a bid challenge.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-4900BID

The facts contained in paragraphs 1, 17, 31, 34, 47, 53, 54, and 55 of Petitioner's Proposed Findings of Fact are adopted in substance, in so far as material.

The facts contained in paragraphs 2, 3, 4, 20, 21, 22, 23, 27 and 28 of Petitioner's Proposed Findings of Fact are immaterial.

The facts contained in paragraphs 6, 7, 8, 9, 10, 12, 13, 15, 18, 24, 26,

32, 33, 36, 37, 39, 40, 41, 42, 44, 45, 46, 48 and 50 of Petitioner's Proposed Findings of Fact are subordinate.

The facts contained in paragraphs 14, 16, 19, 25, 29, 35, 38, 43, 49, 56 and 57 of Petitioner's Proposed Findings of Fact were not shown by the evidence.

The facts contained in paragraph 5 of Petitioner's Proposed Findings of Fact were not shown except that Bates was new and not familiar with the bid process.

The facts contained in the first sentence of paragraph 11 of Petitioner's Proposed Findings of Fact are subordinate.

The remainder of the paragraph was not shown.

The facts contained in the first sentence of paragraph 30 of Petitioner's Proposed Findings of Fact are adopted. The remainder of the paragraph is immaterial.

The facts contained in paragraph 51 of Petitioner's Proposed Findings of Fact are rejected except for those referring to Smith's opinion which are adopted.

The facts contained in paragraph 52 of Petitioner's Proposed Findings of Fact are rejected.

The facts contained in paragraphs 2, 3, 4, 6, 7, 8, 9, 10, 11, 12, 13, 15,

16, 17, 23, 25, 26, 29, 30, 31, 32, 33, 35, 36, 3?, 38, 39, 40, 41, 42, 43, 44,

45, 46, 49, 53, 54, 55, 58, 59, 60, 61, 63, 64, 65, 66, 69, 82, 83, 8?, 88, 89,

90, 91, 92, 93, 94, 95, 96, 101, 110 and 111 of Respondent's Proposed Findings of Fact are adopted, in substance, in so far as material.

The facts contained in paragraphs 1, 5, 14, 18, 19, 20, 21, 22, 24, 27, 28,

34, 48, 50, 51, 56, 57, 62, 67, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81,

84, 85, 86, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109 and 112

of Respondent's Proposed Findings of Fact are subordinate.

The facts contained in paragraphs 47, 52 and 68 of Respondent's Proposed Findings of Fact are irrelevant.

The facts contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 14,

15, 16, 17, 19, 20, 21, 23, 24, 25, 27, 28, 29, 30, 31 and 32 of Intervenor's

Proposed Findings of Fact are adopted, in substance, in so far as material.

The facts contained in paragraphs 12, 13, 18 and 22 of Intervenor's Proposed Findings of Fact are subordinate.

The facts contained in paragraph 26 are irrelevant.

COPIES FURNISHED:

Jesse W. Rigby, Esquire

CLARK, PARTINGTON, HART, LARRY, BOND, STACKHOUSE & STONE

125 W. Romana Street Suite 800 First Florida Bank Building Post Office Box 1310 Pensacola, Florida 32391-3010

Jon W. Searcy, Esquire Post Office Box 12544

Pensacola, Florida 32573-2544

Mr. Rodney Johnson, Esquire District Legal Counsel District One

Department of Health and Rehabilitative Services Post Office Box 8420

Pensacola, Florida 32505-8420

Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Sam Power, HRS Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Docket for Case No: 88-004900BID

Orders for Case No: 88-004900BID