STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FRED D. BOOZER, )

)

Petitioner, )

vs. ) CASE NO. 89-2712BID

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

) TRUST NB-1, )

)

Petitioner, )

vs. ) CASE NO. 89-2773BID

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above-styled matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Daniel M. Kilbride, on June 6, 1989 in Melbourne, Florida. The following appearances were entered:

APPEARANCES

For Petitioner, Thomas Houck, Esquire

Fred D. BOOZER: 312 South Harbour City Boulevard

Suite 1 Melbourne, Florida

For Respondent: James A. Sawyer, Esguire

District 7 Legal Counsel Department of Health and Rehabilitative Services

400 West Robinson Street Suite 911

Orlando, Florida

For Intervenor: James P. Beadle, Esquire Nottus, Inc.: Jack B. Spira, Esquire

5205 Babcock Street Melbourne, Florida

For Petitioner, Tony Blank, as Trustee Trust NB-1: 8940 NW 24th Terrace

Miami, Florida

STATEMENT OF THE ISSUES

Whether Respondent was justified in cancelling the award of bid of HRS Lease No. 590:2054 to Petitioner, BOOZER, on the basis that it was nonresponsive.

Whether Respondent acted fraudulently, arbitrarily, illegally or dishonestly in issuing an award of HRS Lease No. 590:2054 to Intervenor rather than to Petitioners or some other bidder.

PRELIMINARY STATEMENT

These proceedings arose as the result of a bid solicitation issued by Respondent, Department of Health and Rehabilitative Services. HRS sought the lease of office space in the Palm Bay/Melbourne, Florida area and received five bids. HRS initially awarded the bid to Petitioner, BOOZER. On April 17, 1989, Petitioner was formally advised that the award of bid was withdrawn and that HRS decided to award the bid to Intervenor Nottus Inc. as the lowest and best bidder. Petitioner timely filed a written notice of protest. Upon the 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 (1987).

Petitioner, Trust NB-1, a bidder to said lease, timely filed its written notice of protest. These cases were consolidated for hearing, and the consolidated hearing was held on June 6, 1989.

At the final hearing, Petitioner, BOOZER, called two witnesses and submitted three exhibits in evidence. Respondent called two witnesses and submitted sixteen exhibits in evidence. Intervenor called two witnesses and submitted five exhibits. Petitioner, Trust NB-1, submitted one exhibit in evidence.

The transcript of the hearing was filed on June 21, 1989, and the parties were to file proposed recommended orders and briefs within ten days of the filing of the transcript. Petitioner, BOOZER, submitted proposed findings of fact and written legal argument on July 3, 1989. Petitioner, Trust NB-1, did not file proposed findings. Respondent submitted argument only. Intervenor submitted proposed findings of fact on July 5, 1989. Each of the parties proposals have been addressed in the appendix to the Recommended Order.

FINDINGS OF FACT

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

1. HRS caused an invitation to bid to be advertised regarding Lease No. 590:2054 on January 3, 1989 and January 10, 1989. The Invitation to Bid required that all bids be received on or before 2:30 p.m. February 1, 1989, for 9,168 net rentable square feet, plus or minus 3%, of existing office space. A pre- bid meeting was scheduled for January 11, 1989. The advertisement also advise that the bid specifications could be obtained from the Orlando Regional Office of HRS, and that the State of Florida reserved the right to reject any and all bids.

   
   

2. The material provisions of the bid specifications at issue in this proceeding are:

   1. The space be made available on September 1, 1989 or within 175 days after bid is finalized.

      
      

   2. The proposed space must be in an "existing building", which was: defined to mean "dry and capable of being physically measured to determine net rentable square footage at the time of bid submittal".

      
      

   3. The bidder provide 2 clear photographs of the exterior front of the proposed facility and 2 scaled (1/8 inch or 1/4 inch 1 foot preferred) floor plan showing present configurations with measurements that equate to the net rentable square footage (HRS Exh. 1, General Specifications Requirement No. 10(a)) Emphasis in original).

      
      

   4. Building(s) in not more than 2 locations provided the facilities are immediately adjacent to or within 100 yards of each other.

   
   

3. Prior to the pre-bid conference, but after the initial publication of the bid invitation, representatives of NOTTUS contacted Ernie Wilson, the facilities services manager for District 7, HRS, to inquire regarding the propriety of submitting a bid for space in two buildings in which HRS presently had facilities, together with a facility that was greater than 100 yards from the existing facilities. At the time of the inquiry, NOTTUS was leasing facilities to HRS at its Lipscomb facility in Palm Bay, Florida. A portion of the square footage that NOTTUS inquired about leasing to HRS was the remaining square footage in two buildings that HRS partially occupied at that time. All of the premises submitted by NOTTUS under its bid package were located in the Woodlake PUD, which is all under single ownership.

   
   

4. A representative from HRS advised the representative from NOTTUS that:

   
   

   1. the issue regarding the proximity of the locations would not be addressed as a bid specification, but rather, that would be a matter to be weighed by the evaluation committee in analyzing the bids.

      
      

   2. the bid proposal to be submitted would actually be for two locations as a portion of the space offered by NOTTUS was to be located in buildings in which HRS presently maintained facilities.

      
      

   3. The submittal of the bid package regarding the premises subject to occupancy by HRS, as ultimately submitted by NOTTUS, would definitely not disqualify the bid submittal.

   
   

5. Mr. Wilson also received telephone calls from BOOZER and a third bidder making inquires regarding the bid package.

   
   

6. The Pre-bid conference was held on January 11, 1989. No objections or questions regarding the bid specifications as to be utilization or definition of the terms "existing building" and "present configuration" were raised at that time.

   
   

7. At no time prior to the submission of the bids were any objections or questions raised by BOOZER regarding the utilization of the term "existing building" or the term "present configuration" as those terms were defined within the bid specification.

8. Each of the Petitioners in this action, the Intervenor, as well as two other parties, submitted bids to HRS within the time requirement set forth in the bid documents. The bids were opened at the time and place reflected in the aid documents and Invitation to Bid.

   
   

9. Subsequent to the opening of the bids, John Stewart, who is Ernie Wilson's supervisor, and Ernie Wilson reviewed the bid packages submitted for Lease No. 590:2054 and made a determination as to which bids were responsive.

   
   

10. As a result of that evaluation, a determination was made that all five bidders were responsive. These bidders were the Petitioner, Fred D. BOOZER, the Intervenor, Nottus, Inc. the Petitioner, Trust NB-1 Micah G. Savell and Professional Center V. Inc.

    
    

11. These bid proposals were then submitted to the evaluation committee who viewed the property of each of the bidders on February 13, 1989.

    
    

12. The bid documents of BOOZER contained an additional document, i.e., a site plan, which reflected that the premises subject to his bid proposal were an "existing building". The area submitted for the bid was shaded reflecting the entire square footage submitted for bid as being "in existence." The drawing further reflected the "existing building" as being the "proposed HRS building".

    
    

13. The premises subject to the Petitioner's, BOOZER, bid were not in existence, as that term was defined in the bid specifications, in that approximately 2500 square feet had not yet been constructed. Two walls, a floor slab and a roof were not in existence.

    
    

14. The only improvements located therein were palm trees, grass and a sidewalk.

    
    

15. Petitioner stipulated that the area occupied by the palm trees, grass and sidewalk was in fact "not dry". The existing building at 2225 South Babcock Street that was dry at the time of the bid opening constituted approximately 6,900 square feet of premises subject to Petitioner's bid.

    
    

16. At the time of the inspection, the Petitioner, BOOZER, was present.

    At no time did BOOZER indicate that the total facility bid was not in existence. The members of the evaluating committee who viewed the property for purposes of evaluating the bid were not aware of the fact that the entire premises subject to BOOZER's bid proposal was not in "Existence" and "dry".

    
    

17. The floor plan showing the present configuration of BOOZER's facility reflected an open floor space for the area occupied by the palm trees, grass and sidewalk. The palm trees, grass and sidewalk were not reflected in the present configuration drawing.

    
    

18. Both the floor plan and site plan were prepared by BOOZER's son with his approval.

19. In evaluating the respective bid proposals, the evaluation committee rated the properties as follows:

    
    

    1. Fred D. BOOZER - 450 points

    2. Nottus, Inc.- 433 points

    3. Micah Savell - 384 points

    4. Trust NB-l - 360 points

    5. Professional Center V. Inc.- 357 points

       
       

20. The location requirement found in Article D.3(b) of the bid package was taken into account. In evaluating the Nottus bid, including a zero rating from one of the evaluation committee members.

    
    

21. As a result of the points awarded by the evaluation committee, a determination was made to award the bid to BOOZER, who was notified of this award on or about March 14, 1989 by letter dated March 14, 1989.

    
    

22. On or about March 20, 1989, Petitioner, BOOZER, obtained a construction permit from the City of Melbourne to construct a fire wall and framing for additional shell building. This building permit was for the purpose of enclosing the area that was occupied by the palm trees, grass and sidewalk at the time of the bid proposal being submitted.

    
    

23. Upon being awarded the bid, Petitioner, BOOZER then made a decision to commence construction to complete the premises subject to his bid proposal, and had expended $28,000 thereon through the hearing date.

    
    

24. On or about March 29, 1989, HRS, through Ernie Wilson and Lynn Nobley, discovered the fact that approximately 2,500 square feet represented as being a part of the existing building, in fact was not existing pursuant to the bid specifications. At the time of this discovery, construction under the construction permit had not been completed. Mr. Wilson advised BOOZER at that time that he was concerned that BOOZER's bid was nonresponsive because the premises subject to the bid proposal were not in an "existing" building at the time of the bid submittal.

    
    

25. The normal procedure for HRS in awarding a bid where the initial award is cancelled or thrown out is to award the bid to the second and next best lowest bidder.

    
    

26. It is not the normal practice of the HRS evaluation committee to measure the applicable properties at time of evaluation to determine net rentable square footage.

    
    

27. At the time of discovery of the foregoing status of BOOZER's building, Ernie Wilson, contacted a Nottus representative, Fred E Sutton, its President, to advise him of the possible nonresponsiveness of BOOZER's bid and requested information to determine whether Nottus, the second low bidder, still had facilities available pursuant to its bid documents and whether Nottus would agree to continue to continue to be bound by the terms thereof.

    
    

28. Mr. Sutton advised Ernie Wilson that the facilities were still available and that Nottus would agree to abide by the terms of its bid proposal.

    
    

29. Following the procedural steps necessary to advise the appropriate individuals within HRS of the possible nonresponsive bid by BOOZER, Ernie Wilson was advised by the Director of HRS General Services, King W. Davis, by letter

    dated April 2, 1989 to withdraw the award for the proposed lease 590:2054 from BOOZER because of approximately 2,500 feet of nonexisting space. He was also instructed to award same to Nottus as the second lowest bidder.

    
    

30. On or about April 14, 1989, Ernie Wilson advised BOOZER of the Notice of Withdrawal of the award from BOOZER and award to Nottus, together with the reasons therefor, which was received by BOOZER on April 17, 1989.

    
    

31. Petitioner, BOOZER, timely initiated these actions by filing his Notice of Intent to appeal the withdrawal of the award of bid to him and the award to Nottus, and by timely filing a formal written protest and request for formal hearing.

    
    

32. Attachment "D" of the bid package required the submittal of a proposed plan to a division of the State Fire Marshal for review of any proposed construction or renovation to determine whether such construction or renovation complied with the uniform fire safety standards. Said plans were required to be prepared by licensed architects and engineers for certifications outlined in Attachment "D". These matters were all to be completed prior to the commencement of any revocation or alteration.

    
    

33. Petitioner, BOOZER, commenced said improvements prior to said approval. In fact, BOOZER submitted no plans in compliance with these requirements prior to construction.

    
    

34. Petitioner, BOOZER, is a licensed builder in the State of Florida, and has been for ten years. BOOZER further acknowledged that at the time of signing and submitting the bid proposal, he certified that he understood the terms of the bid specifications and agreed to be bound by them.

    
    

35. TRUST NB-1 attempted to initiate an appeal of the award of the bid to Nottus by submitting a facsimile "notice of protest" to HRS predicated on the award of the bid to Nottus occurring greater than sixty (60) days following the bid opening date.

    
    

36. TRUST NB-1 received notice of the award to Nottus on April 18, 1989 and attempted facsimile delivery on April 21, 1989.

    
    

37. The facsimile "Written Notice of Protest" was not filed until April 25, 1989. The regular mail receipt of said Notice was received by HRS and filed on April 24, 1989.

District 7, and is also the person designated in the bid documents as the contact person for the bid on Lease No. 590:2054.

1. TRUST NB-1 was ranked number four in relation to the five bids submitted. Bidder Micah Savell, not a party to these proceedings, is the next low bidder after BOOZER and Nottus, Inc.

   CONCLUSIONS OF LAW

   
   

   1. Petition of BOOZER

      
      

2. Section 255.25(3), Florida Statutes (1988 Supp.), mandates competitive bidding for leases by agencies for space greater than 2,000 square feet, and awarding of bids to the "lowest and best bidder". Applicable regulatory authority for bidding of a lease property for those leases greater than 2,000 square feet is set forth in Chapter 13M-1 Florida Administrative Code. The provisions for resolution of contract bid and award protests are contained in Section 120.53(5), Florida Statutes 1987, and Chapter 10-13, Florida Administrative Code

   
   

3. In addition to the applicable statutory and regulatory provisions regarding bid awards, a large body of case law has developed in Florida and elsewhere regarding the evaluation of actions taken by a bidding agency. Initially, 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 may disagree. Liberty County V. Baxter's Asphalt & Concrete, 421 So.2d 505, 507 (Fla. 1982). Second, the purpose of competitive bidding has been stated as follows:

   
   

   Competitive bidding statutes are enacted for the protection of the public. They create a system by which goods or services required by public authorities may be acquired at the lowest possible cost. The system confers upon both the contractor and the public authority reciprocal benefits, and exacts from each of them reciprocal obligations.

   The bidder is assured fair consideration of this offer, and is guaranteed the contract if his is the lowest and best bid received. The principal benefit flowing to the public authority is the opportunity of purchasing the goods and services required by it at the best price obtainable. Under this system, the public authority may not arbitrarily or capriciously discriminate between bidders, or make the award on the basis of personal preference.

   
   

   Marriott Corp. v. Netro Dade County, 383 So.2d 662, 665 (Fla. 3d DCA 1980); Hotel China & Glass Co. v. Board of Instruction, 130 So.2d 78, 81 (Fla. 1st DCA 1961). If a determination is made that the lowest bid is nonconforming, the bidding agency has two alternatives, i.e., to award the contract to the next lowest bidder who met the specifications, or to reject all bids and readvertise for new ones. Harry Pepper & Assoc. v. City of Cape Coral, 352 So.2d 1190, 1193 (Fla. 2d DCA 1977). This is true even if the bid has already been awarded to the nonconforming lowest bidder. Id.

   
   

4. Petitioner BOOZER's first attack regarding the withdrawal of the bid award to him addresses the provisions regarding the definition of "existing building" and "present configuration" within the bid specifications. The general thrust of the argument was that said provisions did not comport to the normal standards in the industry and that there was no regulatory basis for the

   inclusion of said definitions within the bid documents. Initially, it should be noted that any restriction in a specification is valid so long as it is not unreasonable or unjust. 1A Antieau, Municipal Corporation Law Section 10.36, n.

   18 (1987). Competitive bids should be predicated upon adequate specifications which afford some reasonable basis for comparison of bids, in order that the bids when received, might be truly competitive by having them applied to the same thing. Webster v. Belote, 103 Fla. 976, 138 So.721 (1931); 10 McQuillen, Municipal Corporations, Section 29.44 (n. 4 and cases cited therein (1981)). Finally, the duty of construing bids rests primarily with the contracting authority, 64 Am. Jur. 2d, Public works and Contracts, Section 55, n. 96 (1972), Supp. 1989) and agency interpretation of statutes and regulations is entitled to great weight and persuasive force, and the courts will not depart from that interpretation unless it is clearly erroneous. Reedy Creek Improvement Dist. v. State Department of Environmental Regulation, 486 So.2d 642 (Fla. 1st DCA 1986). Humhosco, Inc. v. Dept. of Health & Rehabilitative Services, 476 So.2d 258 (Fla. 1st DCA 1985); Cohen v. School Board, Dade County, 450 So.2d 1238 (Fla. 3d DCA 1984).

   
   

5. There was no evidence adduced at the hearing which reflected that these definitions were unreasonable or unjust or that they did not provide a reasonable basis for comparison. There was no evidence adduced that could even arguably overcome the presumption of correctness in HRS' interpretation of these definitions, even if it is determined that these terms are subject to interpretation. See Ross v. Savage, 66 Fla. 106, 63 So. 148 (1913); Jaar V. University of Miami, 474 So.2d 1072 (Fla. 2d DCA 1985) (existence of clear and unambiguous contract is the best evidence of the intent of the parties). Further, Petitioner BOOZER did not raise the issue of construction of "existing building" or "present configuration", or even question the definition of these items, until the filing of its formal bid protest.

   
   

6. The questions raised by the Petitioner as to the lack of regulatory authority for including these provisions in the bid documents are likewise without merit. The specific provisions in question are included verbatim in Form BPM 4136, which is incorporated by reference into Section 13M-1.-15(4)(e), Florida Administrative Code. BOOZER asserted below that Chapter 13M, Florida Administrative Code, did not apply to these proceedings because of certain references to the Department of General Services contained therein. This argument is likewise without merit as Chapter 13M is a general chapter regarding leases by any state agency, including HRS, of over 2,000 square feet. The bid documents are also replete with references to Department of General Services requirements and Department forms executed or to be complied with if awarded the bid, including the necessity of General Services approval on the lease. Therefore, any attack as to the facial validity of these provisions is wholly without merit.

   
   

7. The terms and conditions of the bid documents are a part of a duly adopted rule. No evidence was presented to show that BOOZER was in any different position for bidding purposes than any other bidders. Nor was there any evidence presented that BOOZER did not understand the meaning of these provisions. Rather, BOOZER stipulated at the hearing that the space in question was not "dry" for purposes of the bid specifications.

   
   

8. BOOZER next contends that its bid was in substantial compliance with the bid specifications and that any deviation was not material, and his bid was, therefore, responsive. The documents submitted by BOOZER in support of his bid proposal clearly reflected that the premises subject to his bid proposal were in fact in an "existing building". Further, his site plan clearly reflected that

   the entire premises subject to the bid proposal were in existence at the time of submittal. Likewise, the floor plans showing the present configuration of the premises were misrepresented. The area showing the present configuration failed to illustrate the existence of only a sidewalk, grass and palm trees located within its confines. Rather, the present configuration showed only vacant space within a confined interior space. These matters were clearly misrepresentations as to the present configuration of the premises subject to the bid proposal.

   
   

9. BOOZER further exacerbated this misrepresentation at the time of inspection by the evaluation committee by failing to disclose the fact that a portion of the premises subject to the bid proposal was not "dry", and therefore, not in an "existing building" under the terms of the bid specifications. In fact, both BOOZER and the evaluation committee traversed the area subject to this dispute, and BOOZER failed to advise anyone of the fact that the area containing a sidewalk, grass and palm trees were a part of the premises subject to the bid proposal. These actions on the part of BOOZER clearly represent misrepresentations and omissions as to the status of the premises subject to the bid proposal. BOOZER was under an obligation to advise HRS of the fact that the premises subject to the bid proposal were not in fact as represented. Cf., Johnson v. Davis, 480 So.d 625 (Fla. 1985) where vendor knows of facts materially affecting the value of the property which are not readily observable and are not known to buyer, seller is under duty to disclose them to buyer. It applies to all forms of real property, new and used) London

   v. Brown, 537 So.2d 62 (Fla. 2d DCA 1989) (applied Johnson v. Davis to representation of zoning on property). These intentional activities on the part of Petitioner should clearly invalidate his bid proposal. HRS evaluation committees were not in the practice of measuring applicable properties at the time of their evaluation to determine net rentable square footage. HRS relied upon the fact that BOOZER represented in his bid package that the premises subject to his bid proposal were in an existing building. There was no reason to inquire further at that point as BOOZER, as a licensed contractor, had certified that he understood the bid requirements and conditions therein and agreed to abide by them.

   
   

10. The Petitioner, BOOZER held an advantage not enjoyed by other bidders. He was able to submit a bid for space that was not in an "existing building" as required by the bid documents, and after being awarded the bid, could then make a determination whether he wanted the job bad enough to incur the additional expense of constructing the balance of the premises subject to his bid proposal. By his own testimony, BOOZER indicated that he has spent $28,000.00 to the date of the hearing in completing the balance of the premised subject to his bib proposal. The determination to make these expenditures was not made until after he was awarded the bid. He was also allowed to retain the investment opportunity income from his money for the period of time he did not have to complete the premises subject to his bid proposal, together with other carrying charges. The portion of the premises that had not been completed also allowed BOOZER to construct that portion of his premises to direct specifications of HRS, thereby eliminating any interior alteration and modification expenses that would be incurred by the other bidders. As a result of the foregoing, the fact that the total premises subject to the bid proposal of BOOZER was not in an "existing building" at the time of the bid submittal and opening was material, BOOZER's bid was nonresponsive. Harry Pepper and Associates, Inc. v. City of Cape Coral, 352 So.2d 1190 (Fla 2d DCA 1978). See also: Harris/3M V. Office Systems Consultants 533 So.2d 833 (Fla. 1st DCA 1988) (a bidder who did not have a new current standard production model available at the time of bid as required by the bid documents was found to be nonresponsive); City of Opa Locka v. Trustees of Plumbing Industry Promotion Fund, 193 So.2d 29 (Fla. 3rd DCA 1966)

    (bidder who did not have certificate of competency from Dade County as required by the bid document found nonresponsive).

    
    

11. A bidder should not be entitled to gain a palpable economic advantage because of its bidding deviations which give it an advantage over competitors. Finally, there should be no illegality, fraud or the presence of misconduct on the part of either the entity giving the award or the party receiving the award of the bid. Liberty County v. Baxter's Asphalt and Concrete, 421 So.2d 505 (Fla. 1982). Under the facts adduced below, it is clear that BOOZER misrepresented the status of the premises subject to its bid proposal. If not fraud, such actions on the part of BOOZER clearly constituted misconduct with respect to both the bidding agency as well as the other bidders. The fact that a portion of the premises subject to his bid was "not dry" clearly imports that the total premises subject to BOOZER's bid was not in an "existing building." HRS had no reason to know that the space was not in an "existing building", and in fact, BOOZER had a duty to disclose said discrepancy. Upon learning of the true state of affairs, HRS made a determination that the bid was nonresponsive. There being no evidence that HRS did not honestly exercise its discretion withdrawing the bid, the appearance of misconduct by BOOZER clearly supports the withdrawal of the bid from BOOZER.

    
    

12. With respect to the claim for damages raised by BOOZER, it is clear that BOOZER is not entitled to any damages. Initially, because of his prior misconduct, BOOZER should not be allowed to profit from such misconduct. More importantly, however, BOOZER had no right to rely on the award for purposes of constructing the improvements. Prior to any substantial improvements being commenced, and expenses being incurred, Ernie Wilson investigated the site and advised BOOZER that there may be a problem with the bid award because of the nonexistence of a portion of the premises subject to his bid proposal. At that time there was relatively minor work started. Contrary to BOOZER's statement that a substantial portion of work had been done, he indicated also that he estimated it would take a somewhat extended period of time because he and his sons were the only ones who would be working on the project, that the slab was poured prior to the walls and roof being constructed, and that the slab inspection did not occur until April 3, 1989. Therefore, BOOZER's testimony regarding the status of construction is not credible.

    
    

    1. Responsiveness of the Intervenor's Bid.

    
    

13. It is undisputed that the bid of Intervenor, Nottus, Inc., is for three buildings. Two buildings are adjacent to each other and the third is located well over 100 yards from the other two. Page 11 of the invitation to bid, D. Evaluation Criteria (Award Factors), puts all bidders on notice in paragraph 3(b) that "(a) 11 bids will be evaluated based on the award factors enumerated below:

    
    

    " Proposals will be considered, but fewer points given, which offer the aggregate square footage in not more than two locations provided the facilities are immediately adjacent to or within 100 yards of each other." (emphasis supplied)

    
    

14. Part of the reciprocity achieved under the competitive bidding process is achieved in the bid specifications and weighted bid evaluation criteria. All potential bidders are to be advised in advance of the requirements to be met in order to receive the contract award, as well as the standards by which each bid

    will be evaluated by the agency and each standard's relative importance to the agency. A potential bidder can then determine whether he can meet the bid specifications and criteria and thereby determine whether he wishes to go to the time, expense and trouble of preparing and submitting a fairly lengthy and detailed bid proposal. Therefore, central to the integrity and reciprocity of the competitive bid process is the requirement that an agency's action on a bid be expressed within the bid specifications and evaluation criteria which it created, and adhere to them during the selection process. In other words, should an agency accept a bid based on reasons not in the bid specifications and evaluation criteria, that action would go to the integrity of the competitive bidding process and would be arbitrary and capricious. Department of Transportation v. Grove- Watkins Constructors, 530 So.2d 912 (Fla. 1988). The state's competitive bidding statutes are designed and intended to preclude favoritism and bias in its various forms and to afford an equal advantage and opportunity to all desiring to do business with public authorities. Webster v. Belote, 103 Fla. 976, 138 So.2d 721 (1931); Robinson's Inc. v. Short, 146 So.2d

    108 (Fla. 1st DCA 1962).

    
    

15. In this case, the limitation on the number and distance of the solicited facility is clearly part of the bid package and is a bid specification. Any variance from the requirement of "not more than two locations" and "within 100 yards of each other" is material and cannot be waived as a minor irregularity or variance. See: Section 13A-1.001(10), Florida Administrative Code.

    
    

16. Such a variance adversely impacts the Departments as well as other bidders. It gave a clear undue advantage to the Intervenor. In addition, the Department and Nottus, Inc. had ex parte communications which resulted in a verbal waiver of the bid specifications. This decision was not conveyed to all other bidders to advise them that such a proposal would be acceptable. Although Mr. Wilson's action was unintentional, at the very least, this action taints the entire bidding process and smacks of unfairness and favoritism. While the proof does not support the conclusion that the Department acted fraudulently or dishonestly in its award to Nottus, Inc., it does demonstrate a bias that adversely tainted the bid process. Intervenor's bid is nonresponsive.

    
    

    C. Motion to Dismiss Bid Protest of Trust NB-l.

    
    

17. As reflected in the findings of fact, Petitioner, TRUST NB-l, forwarded by facsimile transmission its Notice of Intent to Protest to HRS on April 21, 1989. However, the facsimile was not filed until April 25, 1989, and did not contain the original signature of a representative of TRUST NB-1. The Notice of Intent to Protest sent by regular mail was filed on April 24, 1989. The "formal written protest" was filed on May 1, 1989. Finally, TRUST NB-1 was the fourth low bidder.

    
    

18. The only issue raised by TRUST NB-1 in its protest is the propriety of awarding NOTTUS the bid subsequent to the sixty day time period set forth in the bid documents.

    
    

19. It is not necessary to decide if the Notice of Intent to Protest filed by TRUST NB-1 was in an improper form and untimely in order to dispose of this matter. Petitioner, TRUST NB-1 clearly lacks standing to bring this action in that it was the fourth low bidder (second lowest responsive bidder) and as such, lacks any interest in these proceedings. Preston Carroll Co., Inc. v. Florida Keys Aqueduct Auth., 400 So.2d 524 (Fla. 3d DCA 1981).

    (D) As to Petition of TRUST NB-1.

    
    

20. Substantively, the issue regarding the award of the bid beyond the 60 days reflected in the bid documents is without merit. The rationale behind that provision is to provide an outside date which the bidder is required to keep the facilities available. The applicable regulations require that bids remain open for at least 30 days. Section 13M-1.015(c)6, F.A.C. HRS has modified that number to 60 days. It was incumbent upon TRUST NB-1 to establish that the actions of HRS in awarding the bid to NOTTUS beyond the 60 day period were unreasonable and an abuse of discretion. Marriott Corp. v. Metro. Dade County,

    383 So.2d 662 (Fla. 3d DCA 1980). HRS is given the authority to modify minor irregularities in its bid specifications. This would clearly include the 60 day life of the bid proposal. Cf. Hewitt Contracting Company, Inc. v. Melbourne Regional Airport Authority, 528 So.2d 122 (Fla. 5th DCA 1988) (late bid accepted where received subsequent to the bid closing time but prior to the bids being opened). TRUST NB-1 failed to establish that the actions taken by HRS in awarding the bid to NOTTUS beyond the sixty (60) day period was unreasonable and an abuse of discretion.

    
    

21. In this proceeding the two lowest bids of the five bids received are unresponsive. The Respondent should issue another invitation to bid.

RECOMMENDATION

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

(a) Finding the bid of Petitioner, BOOZER, to be unresponsive and that the cancellation of the award by Respondent was justified.

Find the bid of Intervenor, NOTTUS to be unresponsive.

1. Find that Petitioner, TRUST NB-1, lacks standing and its protest should be dismissed.

   
   

2. Reject all bids.

DONE AND ENTERED this 21st day of July, 1989, in Tallahassee, Leon County, Florida.

DANIEL M. KILBRIDE

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904)488-9675

Filed with the Clerk of the Division of Administrative Hearings this 21st day of July, 1989.

APPENDIX

1. Proposed Findings of Fact by Petitioner, Fred O. Boozer: 1-5 Rejected.

   6 and 7 Accepted as incorporated in the Recommended Order.

   
   

2. Proposed Findings of Fact by Intervenor, Nottus, Inc.

1. Accepted.

2. Accepted as modified.

3-30. Accepted.

31. The first two sentences rejected as argument and not supported by the evidence. Last sentence in paragraph accepted.

32-40. Accepted.

COPIES FURNISHED:

Thomas Houck, Esquire

312 South Harbor City Boulevard Suite 1

Melbourne, Florida

James A. Sawyer, Esquire District 7 Legal Counsel Department of Health and Rehabilitative Services

400 West Robinson Street Suite 911

Orlando, Florida

Sam Power Clerk

Department of Health and Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, FL 32399-0700

Gregory L. Coler Secretary

Department of Health and Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, FL 32399-0700

John Miller General Counsel

Department of Health and Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, FL 32399-0700

Docket for Case No: 89-002712BID

Orders for Case No: 89-002712BID