STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARING

)

)

) DALE S. JONES, as TRUSTEE, DSJ ) REALTY COMPANY, INC., and ) ELIZABETHAN DEVELOPMENT INC., )

)

Petitioners, )

)

vs. ) CASE NO. 89-5293B1D

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Don W. Davis, held a formal hearing in the above- styled case on October 10, 1989, in Lakeland, Florida.

APPEARANCES

For Petitioner Bruce Marger, Esquire

FIRST MASTER 1700 66th Street, North, Suite 501 LESSORS, INC: St. Petersburg, Florida 33710

For Petitioners DALE S. JONES, as TRUSTEE, DSJ

REALTY COMPANY, David H. Simmons, Esquire INC., and 120 South Orange Avenue ELIZABETHAN Post Office Box 67 DEVELOPMENT INC: Orlando, Florida 32602

For Respondent Jack E. Farley, Esquire DEPARTMENT OF HRS District 6 Legal Office HEALTH AND 4000 West Buffalo Avenue REHABILITATIVE Fifth Floor, Room 500 SERVICES: Tampa, Florida 33514

STATEMENT OF THE ISSUES

The primary issue for determination is whether Respondent's decision to rescind a previous notice of award of a bid to Petitioner First Master Lessors, Inc., on the basis that the original bid was nonresponsive, was appropriate. If rescission of that bid award was proper, a secondary issue is whether Respondent was also justified in rejecting the competing bid submitted on behalf of Petitioner DSJ Realty Company Inc.

PRELIMINARY STATEMENT

By letters dated August 28, 1989, Respondent's representative informed all Petitioners that the previous bid award to Petitioner First Master Lessors, Inc., was, upon reexamination of the bid submittal package, determined to be nonresponsive. Further, Petitioners were informed that the bid submitted on behalf of Petitioner DSJ Realty Company, Inc., was also nonresponsive.

Petitioners subsequently requested formal administrative hearings regarding Respondent's action and the matters were transferred to the Division Of Administrative Hearings to conduct formal hearings pursuant to Section 120.57(1), Florida Statutes.

By order of the hearing officer, with consent of all parties, the cases were consolidated for hearing prior to commencement of the final hearing. The motion of First Master Lessors, Inc., to supplement its petition for formal proceedings was granted in accordance with stipulation of all parties.

At the hearing, Petitioner First Master Lessors, Inc., presented the testimony of two witnesses and nine evidentiary exhibits. Testimony of two witnesses and three evidentiary exhibits were presented on behalf of Dale S. Jones, as trustee; DSJ Realty Company Inc.; and Elizabethan Development, Inc. Respondent presented three evidentiary exhibits, but no testimony of witnesses. A transcript of the final hearing was filed with the Division Of Administrative Hearings on October 23, 1989. Proposed findings of fact were submitted by the parties and are addressed in the appendix to this recommended order.

Ruling was reserved by the hearing officer upon the motion of First Master Lessors, Inc., that the Petition of Dale S. Jones, as trustee; DSJ Realty Company Inc.; and Elizabethan Development, Inc., be dismissed. That motion is further addressed in this recommended order.

FINDINGS OF FACT

1. Respondent issued an Invitation To Bid in order to obtain a leasehold of 15,397 square feet of office space to house operations of its child support enforcement office in Lakeland, Florida, for a term of seven years with an option to renew the lease for two additional three year periods.

   
   

2. The Invitation To Bid (ITB) states Respondent's reservation of the right to reject, if in the best interest of the State of Florida, any and all bids. Further, the invitation states a number of conditions that submitting bidders must meet in order for their bids to be deemed responsive.

3. Among the stated conditions is the requirement that bids be submitted on the standardized bid submittal form enclosed in the ITB in compliance with conditions specified on that form. Further, bidders are directed to complete the bid submittal form providing acknowledgements requested by the form.

   
   

4. Another stated condition of the ITB is the requirement that a bidder be the owner of record of the facility and parking areas offered for lease; or, if a lessee seeking to sublease, submit with the bid proposal documentation of authority to sublease the facility and parking areas.

   
   

5. A further ITB condition requires each bid to be signed by the owner, corporate officers or legal representative of the bidding entity. Corporate, trade or partnership titles of the bidding entity are to be stamped or typewritten beside the actual signature. Bid submissions signed by an agent are required to be accompanied by written evidence from the owner of record documenting the agent's authority. All bid submittal signatures are to be notarized.

   
   

6. Page 4 of the standardized bid submittal form enclosed in the ITB requires, in paragraph 11, that any bid offering premises for consideration (including parking areas), which are presently occupied or which will covered by other active leases on the anticipated lease effective date, must be accompanied by documentation executed by those tenants indicating their acknowledgement of the bid and their ability to vacate the premises by the proposed lease effective date. Submitting bidders are required to indicate whether this requirement is applicable to their bid.

   
   

7. Page 4 of the standard bid submittal form contains a number of other conditions which require agreement by the submitting bidder. Proof of the bidder's agreement to those conditions is to be documented by the bidder's initials on each page of the bid submittal package and the bidder's notarized signature on page 16, the submittal form's concluding page.

   
   

8. Among the conditions on Page 4 of the form is the agreement of the successful bidder to provide leased space to Respondent for exclusive use on a

   24 hour basis, seven days per week during the term of any lease resulting from the bid. This condition further explicitly states that the space to be leased will be fully occupied during normal working hours of 8 a.m. to 5 p.m. during the week and may be fully or partially occupied at other times as necessary in Respondent's discretion.

   
   

9. Respondent's bid request specified that bidders must offer a minimum of

   65 parking spaces in conjunction with premises proposed for lease. Of those spaces, two spaces were required to meet requirements of accessibility for handicapped parking. Of the remaining spaces, 52 spaces were required to accommodate full size automobiles. All parking was required to be provided as part of the lease cost to Respondent and under the "control of the bidder, off street, suitably paved and lined."

   
   

10. On May 16, 1989, five bids were opened, including those submitted on behalf of Petitioner DSJ Realty Company Inc. (DSJ), and Petitioner First Master Lessors, Inc. (MASTER).

    
    

11. Out of the five bids opened, only the bids of MASTER and DSJ were determined to be responsive. After evaluation of the bids by Respondent's personnel, the bid was awarded to MASTER on July 6, 1989.

12. On July 11, 1989, and in response to the award to MASTER, a notice of intent to protest the award was filed by counsel for Dale S. Jones, as trustee; DSJ; and Elizabethan Development, Inc. (ELIZABETHAN).

    
    

13. By letter dated July 12, 1989, Alan Taylor filed a protest of the lease award to MASTER. That letter simply stated its efficacy as a protest with the words "[w]e hereby protest the award of lease # 590:2087 to First Master Lessors, Inc." No particular factual or legal basis for the protest was stated. Taylor is associated with ELIZABETHAN and his letter is typed on stationary of that business entity.

    
    

14. Taylor, designated the bidder on page one of the DSJ bid submittal, was authorized to act solely on behalf of DSJ in the submission of its bid by its president, Dale S. Jones, Jr. Documentation of that authority is contained in a May 8, 1989 memorandum attached to the bid package. There is no documentation in the bid submittal package of DSJ that Taylor was empowered to act on behalf of ELIZABETHAN, or that ELIZABETHAN was authorized to act on behalf of any entity in regard to the bid submittal. While not set forth in the bid package, testimony at the final hearing establishes that Jones is the sole owner of DSJ.

    
    

15. Subsequent to the filing of the DSJ protest, Respondent determined to reject the bids of MASTER and DSJ as nonresponsive. By letter dated August 28, 1989, Respondent informed both counsel for DSJ and MASTER of this decision.

    
    

16. As set forth in the August 28, 1989 letter, Respondent's decision to reject the bid of DSJ was based upon the failure of DSJ's bid submittal to reflect that its agent, Alan Taylor, or the proposed lessee designated in that bid submittal, DSJ Realty Company, had control of the property offered for lease to Respondent.

    
    

17. The August 28, 1989 letter also stated Respondent's rejection of MASTER's bid due to a lack of control of the property sought to be leased, specifically control over parking spaces to be provided in conjunction with the premises to be leased.

    
    

18. MASTER's bid submittal stated that the bid requirements in paragraph

    11 of the bid submittal form requiring documentation of acknowledgements by any existing tenants of the premises (including parking areas) offered for lease, and ability of those existing tenants to vacate the premises, was not applicable.

    
    

19. In response to the bid requirement for 65 parking spaces, MASTER's bid proposed 17 "exclusive" spaces on site and 48 "nonexclusive" spaces off site.

    An attachment to the bid response was a copy of a letter dated June 10, 1983, from the First Christian Church to a predecessor of MASTER, First Bank of Lakeland. The church, located across the street from the site proposed to be leased to Respondent by MASTER, granted "permission to the First Bank of Lakeland to use our parking lot for the convenience of their employees."

20. Subsequent to the opening of bids and receipt of DSJ's bid protest, MASTER provided Respondent with another letter from the church reciting permission for MASTER to use 48 spaces within the church parking lot for the parking of Respondent's employees and clients, provided that the church reserved the right to use those spaces at any time upon the giving of one week's written notice to MASTER. The church also reserved the right to cancel the agreement at any time upon the giving of 60 days written notice. The letter was dated May 15, 1989.

    
    

21. Also, as established at the final hearing, yet another letter was sent to MASTER's authorized agent from the church. That letter documents the rejection by the church of any "formalization" of a reciprocal parking arrangement with regard to the premises proposed to be leased by MASTER. However, the letter, dated July 20, 1989, restated the church's consent to the use of the parking lot by tenants of the premises proposed for lease by MASTER in accordance with its previous letter of May 15, 1989.

    
    

22. Another letter attached to the bid submittal of MASTER, is also dated May 15, 1989. Directed to Respondent's facilities services manager, this letter is signed by an individual named Geneva Pettus as "[a]gent for First Master Lessors, Inc."

    
    

23. The letter signed by Pettus references the 1983 letter from the church and states in pertinent part:

    
    

    We further guarantee your parking requirements during the term of the lease and will accommodate such spaces either within our own building or other locations if changes in the above parking facilities should occur.

    
    

24. The MASTER bid submittal contains no documentation of authority of Geneva Pettus to act as agent for MASTER. Further, as established by the proof at final hearing, the vast majority of on site spaces controlled by MASTER are leased to present tenants or their employees. Remaining unencumbered parking spaces are inadequate to meet Respondent's bid requirements.

    
    

25. The "guarantee" by Pettus, absent her lack of authorization to act for MASTER, is further invalidated by failure of MASTER to provide acknowledgements, as required by paragraph 11 of the bid submittal form, from the existing lessees of those parking spaces controlled by MASTER which would have to be vacated in order to comply with bid requirements.

    
    

26. The proof establishes that MASTER did not have control of a portion of the property submitted for lease consideration by Respondent, specifically the proposed parking areas. Such lack of control is nonresponsive to Respondent's bid requirements.

    
    

27. Notably, the May 15, 1989 date of Pettus' letter coincides with the May 15, 1989 letter to MASTER from the church. Respondent's facilities service manager, involved in evaluation of the bid submittals, was understandably concerned that this letter's existence was not disclosed to Respondent's personnel prior to August 17, 1989. The position of the church as reflected in the letter caused Respondent's personnel to reevaluate the issue of whether MASTER's bid demonstrated the requisite control over the property submitted for bid consideration and concluded that such control was absent.

28. The DSJ bid submittal contains the notarized signature of Dale S. Jones, Jr., in the space on page 16 reserved for the signature of the bidder. His signature is followed by the title "PARTNER." That term is not further described, nor is a partnership or connection of that partnership with Jones identified in the bid package.

    
    

29. At the final hearing, Jones confirmed his signature. However, the proof fails to establish that the required initials on each page of the DSJ bid package are those of Jones. Jones was unacquainted with the bid package submitted on his behalf, having merely looked through the package before affixing his signature.

    
    

30. Further, the bid submittal form, on page 16, has a blank space for insertion of the name of the bidder submitting the bid package. The bid package submitted on behalf of DSJ contains no name in this portion of the submittal form.

    
    

31. Page 16 of the bid submittal form also requires that the bidder indicate the name of the entity in whose name the subsequent lease is to be written, if that entity is one other than the bidder. The bid, signed by Jones and submitted by Taylor on behalf of DSJ, contains the statement that any future lease resulting from the bid should be titled in the name of "DSJ REALTY COMPANY as managing and Leasing Agent for Crystal Lake 301 and 302 Joint Venture."

    
    

32. Also attached to the DSJ bid submittal package is a copy of an instrument entitled "DEED TO TRUSTEE UNDER TRUST AGREEMENT." By terms of that instrument, the fee simple title to the property and appurtenances of the site of the building proposed to be leased by DSJ, was purportedly conveyed to Dale

    S. Jones, Jr., as "Trustee under Land Trust Agreement dated June 15, 1987". By terms of the deed, Jones is granted specific authority to convey, lease or otherwise exercise those rights to property which are commensurate with ownership. The grantor of the deed, dated July 7, 1987, is Florida Southern College.

    
    

33. The bid package of DSJ contains no documentation that either Jones or DSJ is authorized to act as an agent on behalf of "Crystal Lake 301 and 302 Joint Venture." Further, the bid package of DSJ offers no explanation as to the identity of this entity. As established by Jones' testimony at hearing, the entities "Dale S. Jones, Trustee" and DSJ Realty, Inc., are not interrelated businesses.

    
    

34. The DSJ bid submittal further contains no documentation of authority for ELIZABETHAN or Taylor to act as an agent on behalf of "Crystal Lake 301 and

    302 Joint Venture."

    
    

35. It is found that the bid submittal of DSJ is nonresponsive to the requirements of Respondent's ITB.

    
    

36. In response to Respondent's letter rejecting the bids of Petitioners, counsel for both parties filed petitions dated September 8, 1989, protesting the decision and requesting administrative proceedings.

    
    

37. The petition filed on behalf of DSJ, ELIZABETHAN, and Dale S. Jones, as Trustee, was entitled "PETITION FOR FORMAL HEARING AND FORMAL BID PROTEST" and alleges the submitting bidder to be ELIZABETHAN. The document, in support of the July 12, 1989 protest of the bid award to MASTER, sets forth specific grounds for that protest.

38. Further, it is alleged in the petition that DSJ was appointed to act as the agent of Dale S. Jones, as trustee, in appointing ELIZABETHAN as his agent. It is found that these allegations, with regard to the identity of the submitting bidder, are not supported by any competent substantial proof; that Dale S. Jones, as trustee was not a submitting bidder; and that ELIZABETHAN was not a submitting bidder.

    
    

39. Each petition filed in opposition to Respondent's August 28, 1989 rejection letter, was accompanied by a $5,000 cashier's check payable to Respondent. MASTER subsequently substituted this check with a surety bond.

    
    

40. DSJ's July 12, 1989 protest of the bid award was not accompanied by any bond.

    
    

    CONCLUSIONS OF LAW

    
    

41. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter. Section 120.57(1), Florida Statutes.

    
    

42. Prior to receipt of testimony or other evidence at the final hearing, MASTER presented a motion entitled MOTION TO DISMISS PETITION FOR FORMAL HEARING AND FORMAL BID PROTEST. Ruling upon the motion was reserved pending receipt of proof at hearing. The motion seeks the dismissal of the September 8, 1989 petition filed on behalf of DSJ, ELIZABETHAN, and Dale S. Jones as trustee, on the grounds that the July 12, 1989 protest by Taylor was filed only on behalf of ELIZABETHAN, a nonbidder. As a result, MASTER argues that DSJ and Dale S. Jones as trustee failed to preserve their standing to bring this proceeding in accordance with requirements of Section 120.53(5), Florida Statutes. Further, MASTER's motion alleges that the neither Taylor's protest of July 12, 1989, or the September 8, 1989 petition were accompanied by surety as required by Section 287.042.(2)(c), Florida Statutes, as amended by Chapter 89-291, Laws Of Florida.

    
    

43. Prior to enactment of Chapter 89-291, Laws of Florida, persons protesting a decision or intended decision of the Division of Purchasing of the Department of General Services relating to its administration of term contracts for the acquisition of commodities were required to post a bond payable to the Division in conjunction with the filing of the protest. As a result of the enactment of Chapter 89-291, that requirement is now applicable to all decisions or intended decisions regarding contracts, as opposed to term contracts, which are administered either by the Division or a state agency.

    
    

44. Notably, Chapter 287, Florida Statutes, which encompasses Section

    287.042 is entitled "PROCUREMENT OF PERSONAL PROPERTY AND SERVICES". Section 287.042, Florida Statutes, specifically relates to powers, duties and functions of the Division of Purchasing with regard to commodities, insurance, and contractual services. Further, a definition of "term contract" is set forth in Section 287.012(14), Florida Statutes (Supp. 1988), which reads as follows:

    
    

    (14) "Term contract" means an indefinite quantity contract wherein a party agrees to furnish a commodity or commodities during a prescribed period of time, the expiration of which concludes the contract.

45. The foregoing definition previously determined the operative effect of the phrase "term contracts" in Section 287.042(2)(c), Florida Statutes, which, in pertinent part, read as follows:

    
    

    (c) Any person who files an action protesting a decision or intended decision pertaining to term contracts administered by the division pursuant to 5.120.53(5)(b) shall post with the division at the time of filing the formal written protest a bond payable to the division. . .

    
    

46. Clearly the bond requirement was previously applicable only to administration of contracts involving the acquisition of personal property within a set time frame. The word "term" in the foregoing quotation from Section 287.042(2)(c), Florida Statutes, was eliminated by the enactment of Chapter 89-291, Laws of Florida. Further, the words "or a state agency" were added to the quoted section following the word "division." This change in the statute should be construed within the boundaries of its plain meaning and interpreted to expand the requirement of filing a bond only to those persons who protest the decision of the Division of Purchasing or a state agency regarding administration of any existing contract for the acquisition of commodities, regardless of the time frame of that contract.

    
    

47. Therefore, those grounds of MASTER's motion which seek to dismiss DSJ's petition for noncompliance with bond requirements should be denied. Such a bond is not applicable to these proceedings. Respondent seeks to lease facilities, as opposed to enacting a decision affecting the administration of any existing contract for commodities.

    
    

48. However, neither Dale S. Jones, as trustee; or ELIZABETHAN were submitting bidders in response to RESPONDENT's ITB. Therefore, they have no standing in this proceeding and should be dismissed as parties.

    
    

49. MASTER further urges the dismissal of DSJ on the grounds that the July 12, 1989 protest by Taylor was filed on behalf of ELIZABETHAN and not DSJ. This argument of MASTER is rejected. Taylor's action, while typed on stationary of ELIZABETHAN, is construed to have been taken by him in his role as agent for DSJ.

    
    

50. Taylor's protest does not appear to comply with the requirement of Section 120.53(5), Florida Statutes, that a formal written protest "shall state with particularly the facts and law upon which the protest is based." However, Respondent apparently chose to treat that document as the formal protest. Since the issue of the competency of this document to serve as a formal protest pursuant to Section 120.53(5) has not been raised in this proceeding, no recommendation need be made regarding that legal conclusion, particularly in view of the finding of fact that the bid of DSJ is nonresponsive.

    
    

51. Competitive bidding is required for leases by state agencies of space greater than 2,000 square feet. Section 255.25(3), Florida Statutes (Supp. 1988).

    
    

52. Bids must be signed by the owner or legal representative and "must include proof of the bidder's authority to offer the facility." Rule 13M- 1.015(4)(b), Florida Administrative Code.

53. Neither of the bids by DSJ or MASTER are in compliance with the rule requirement.

    
    

54. Dale S. Jones was not listed as bidder in the DSJ bid submittal. The named bidder was Alan S. Taylor. He submitted the bid on behalf of DSJ, as duly authorized by its corporate president, Dale S. Jones. Ownership of the property offered for lease purportedly rests in Dale S. Jones as trustee of a Florida land trust, another legal entity. The DSJ bid submittal contains no documentation authorizing DSJ or Taylor to act on behalf of the legal entity which owns the property.

    
    

55. With regard to authority to offer the property upon which parking spaces are to be located, the bid submittal of MASTER also fails to comply with the rule. MASTER's bid submittal contains only a 1983 letter to a predecessor from the owner of property proposed to be used for parking. As established at final hearing, that 1983 letter has been reaffirmed since the bid submission by the property owner with the added provision that the parking privileges granted to MASTER may be suspended upon a week's written notice and totally cancelled upon a 60 day written notice. MASTER has not proven authority to offer the church's parking lot for lease to Respondent for exclusive and potential use on a 24 hour basis, seven days per week during the term of a seven year lease resulting from the bid.

    
    

56. MASTER's argument that Respondent's action to rescind the initial bid award to it absent a showing that the bid process has been subverted is not persuasive. MASTER's failure to reveal the May 15, 1989 letter received by it from the church earlier than August 17, 1989, may not have been a deliberate attempt to mislead Respondent. However, the substance of that letter does provide an adequate and rational basis for Respondent's subsequent corrective action rescinding the bid award. Respondent has not acted fraudulently, arbitrarily, illegally or dishonestly. Department of Transportation v. Groves- Watkins Constructors, 530 So.2d 912 (Fla. 1988).

    
    

57. In this proceeding, the two lowest of five bids received are unresponsive. Respondent should issue another bid.

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED that a Final Order be entered finding the bids of MASTER and DSJ to be unresponsive; finding the cancellation of the award to MASTER to be justified; dismissing ELIZABETHAN and Dale S. Jones, as trustee, as petitioners in this proceeding; and rejecting all bids.

DONE AND ENTERED this 14th day of November, 1989, in Tallahassee, Leon County, Florida.

DON W. DAVIS

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 14th day of November, 1989.

APPENDIX

The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties.

Petitioner Master's Proposed Findings. Petitioner MASTER's proposed findings consisted of 21 pages encompassing unnumbered paragraphs dealing with an intertwined mixture of legal conclusions, argument and proposed factual findings. Therefore, MASTER's submission cannot be treated by the Hearing Officer in this appendix on an individualized basis for each proposed finding. However, MASTER's submission has been reviewed and addressed, where possible, by the findings of fact set forth in this recommended order. Otherwise, all disputed issues of material fact have been addressed by the evidence adduced at the hearing held in this cause.

Petitioner DSJ's Proposed Findings.

Addressed in substance, remainder rejected as unnecessary.

1. Rejected, unsupported by the evidence.

2. Addressed in substance.

3. Rejected, unnecessary to result. 7.-1I. Adopted in substance.

1. Rejected, unsupported by the evidence.

2. Addressed in substance.

3. Adopted by reference.

4. Adopted in substance.

16.-21. Not relevant inasmuch as Jones, in an individual capacity or the legal capacity of trustee or partner, was not a bidder.

22.-23. Adopted in substance.

1. Rejected, legal conclusion, relevancy.

2. Addressed in substance.

26 Rejected, not supported by the evidence. Taylor was authorized to act on behalf of DSJ Realty, Inc., by the corporate president.

27.-28. Rejected, not supported by the evidence; no evidence that Jones was a bidder.

29.-32. Rejected as unnecessary in view of result. 33.-42. Adopted in substance.

Respondent's Proposed Findings. 1-12. Adopted in substance.

COPIES FURNISHED:

Jack E. Farley, Esq. Department of Health and

Rehabilitative Services 4000 West Buffalo Avenue 5th Floor, Room 500 Tampa, FL 33614

Gregory L. Coler Secretary

Department of Health and Rehabilitative Services

1323 Winewood Boulevard

Tallahassee, FL 32399-0700

John Miller, Esq. General Counsel Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, FL 32399-0700

Sam Power Agency Clerk

Department of Health and Rehabilitative Services

1323 Winewood Boulevard

Tallahassee, FL 32399-0700

Bruce Marger, Esq.

1700 66th Street, North Suite 501

St. Petersburg, FL 33710

David H. Simmons, Esq.

120 South Orange Avenue

P.O. Box 67 Orlando, FL 32602

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEBARMENT OF HEALTH AND REHABILITATIVE SERVICES

FIRST MASTER LESSORS, INC.,

Petitioner,

vs. CASE NO. 89-5292B1D

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES,

Respondent.

/ DALE S. JONES, as TRUSTEE, DSJ REALTY COMPANY, INC., and ELIZABETHAN DEVELOPMENT INC.,

Petitioners,

vs. CASE NO. 89-5293B1D

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES,

Respondent.

/

FINAL ORDER

This cause came on before me for the purpose of issuing a final agency order. The Hearing Officer assigned by the Division of Administrative Hearings (DOAH) in the above-styled case submitted a Recommended Order to the Department of Health and Rehabilitative services (HRS). A copy of that Recommended Order is attached hereto.

RULING ON EXCEPTIONS FILED

BY FIRST MASTER LESSORS, INC. (FIRST MASTER)

First Master excepts to finding of fact 24, 25, 26, and 27. The findings are supported by competent, substantial evidence; therefore, the exceptions are denied. Heifetz vs. Department of Business Regulation, 475 So2d 1277 at 1281 1st DCA 1985).

First Master excepts to conclusion of law 16 wherein the Hearing Officer concluded that the department properly rescinded the bid award. When an agency decision is reviewed under Section 120.57, Florida Statutes (1987), that decision by operation of law becomes a tentative decision. 1/ See Capeletti Brothers vs. Department of Transportation, 362 So2d 346, 348 (Fla. 1st DCA 1978). Graham vs. Department of General Services, 363 So2d 810, 814 (Fla. 1st

DCA 1978), Krestview Nursing Home vs. HRS, 381 So2d 240 (Fla. 1st DCA 1979), Dickerson vs. Rose, 398 So2d 922, 924 (Fla. 1st DCA 1981). The final agency decision is then made in an order satisfying the requirements of Section 120.59, Florida Statutes (1987).

The bid of First Master was not responsive; thus, the department properly rejected its bid.

FINDINGS OF FACT

The Department hereby adopts and incorporates by reference the findings of fact set forth in the Recommended Order.

CONCLUSIONS OF LAW

The Department hereby adopts and incorporates by reference the conclusions of law set forth in the Recommended Order except where inconsistent with the following:

Chapter 89-291, Section 10, Laws of Florida, amended Section 287.042(2)(c), Florida Statutes (Supp 1988) to require bid protestors to provide a bond payable to the department in the amount of $5,000.00 or 1 percent of the department's estimate of the total volume of the contract, whichever is less. The effective date of the amendment was July 5, 1989.

Because the amendment was placed in Chapter 287, Part I, Commodities, Insurance, and Contractual Services; the bond requirement is applicable to solicitations for commodities and contractual services.

Based upon the foregoing, it is

ADJUDGED, that the bids of First Master Lessors, Inc. and DSJ Realty Company, Inc. be rejected as unresponsive. It is further adjudged that Elizabethan Development, Inc. and Dale S. Jones as Trustee be dismissed as petitioners in this proceeding. Bid protest bonds shall-be returned to the parties.

DONE and ORDERED this 8th day of December, 1988, in Tallahassee, Florida.

Gregory L. Coler Secretary

Department of Health and Rehabilitative Services

by

ENDNOTE

1/ The initial decision is not entitled to a presumption of correctness. Boca Raton Artificial Kidney Center, Inc., vs. HRS, 475 So2d 260, 263 (Fla. 1st DCA 1985).

Deputy Secretary for Administration

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF HRS, AND A SECOND COPY, ALONG WITH FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED

Copies furnished to:

Bruce Marger, Esquire David H. Simmons, Esquire

1700 66th Street, North 120 South Orange Avenue

Suite 501 Post Office Box 67

St. Petersburg, Florida 33710 Orlando, Florida 32602

Don W. Davis Jack D. Farley, Esquire

Hearing Officer District 6 Legal Office

DOAH, The DeSoto Building W. T. Edwards Facility

1230 Apalachee Parkway 4000 W. Buffalo Avenue Tallahassee, Florida 32399-1559 5th Floor, Room 500

Tampa, Florida 33614-9990

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing was sent to above-named people by U.S. Mail this 8th day of December, 1989.

R. S. Power, Agency Clerk Assistant General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407

Tallahassee, Florida 32399-0700 904/488-2381

Docket for Case No: 89-005292BID

Orders for Case No: 89-005292BID