STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

THOMAS V. INFANTINO, SR., )

and his wife, FRANCES )

INFANTINO, )

)

Petitioner, )

)

vs. ) CASE NO. 89-6017BID

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative

Hearings, by its duly designated Hearing Officer, William R. Cave, held a formal hearing in the above-captioned case on January 22, 1990 in Gainesville, Florida.

APPEARANCES

For Petitioner: Thomas V. Infantino, Esquire

Post Office Drawer 30 Winter Park, FL 32609

For Respondent: Arthur R. Shell, Esquire

1000 Northeast 16th Avenue Gainesville, Florida 32601

STATEMENT OF THE ISSUES

Whether the specifications set forth in Respondent's Invitation To Bid for Lease No. 590:2029 are in accordance with law.

PRELIMINARY STATEMENT

The Respondent, Department of Health and Rehabilitative Services (Department) caused an Invitation To Bid For Existing Facility (ITB) to be advertised regarding Lease No. 590:2029 for office space in the Inverness, Florida service area of the Department's District Three. Petitioners presently lease space to the Department in the Inverness, Florida service area of District Three. The Petitioners timely filed a Formal Written Notice of Protest challenging the specifications of the ITB for Lease No. 590:2029. Subsequently, the Petitioner filed a petition alleging that the Department's Leasing Manual HRS M 70-1 was an unpromulgated rule and invalid. This is the issue in

Thomas V. Infantino et ux v. Department of Health and Rehabilitative Services, Case No. 89-6637R which, although the two cases were not consolidated, these was heard on the same day.

The petition was filed pursuant to Section 120.53(5), Florida Statutes, and, in accordance with Section 120.53(5)(e), Florida Statutes, the parties waived the requirement that a hearing be held within 15 days of the Division of Administrative Hearing's receipt of the formal written protest.

At the hearing, Petitioners presented the testimony of Thomas V. Infantino, Sr., Janice D. Johnson, Mark J. Williams, Donald J. Cerlanek, Thomas C. Little, Jr., Lois McCallum and Mary

K. Hawks. Petitioner's exhibit 1 through 10 were received into evidence. Respondent did not call any witnesses. The deposition testimony of Mark J. William and George Smith were received into evidence as Joint Exhibits 1 and 2, respectively.

A transcript of the proceeding was filed with the

Division of Administrative Hearings February 1, 1990. The parties having stipulated to the late filing of their respective Proposed Findings of Fact and Conclusions of Law Order waived the requirement of filing a Recommended Order within thirty days after receipt of the transcript in accordance with Section 120.53(5)(e), Florida Statutes. The parties, in accordance with the stipulation, timely submitted their respective Proposed Findings of Fact and Conclusions of Law. A ruling on each proposed findings of fact has been made as reflected in the Appendix to the Final Order.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found:

1. The Department of Health and Rehabilitative Services (Department) determines space need annually pursuant to a letter of agency staffing, primarily generated as a result of legislatively allocated new positions.

   
   

2. Based on the letter of agency staffing showing the

   need for additional office space in the Inverness, Florida service area of the Department's District Three, the Department caused an ITB to be advertised regarding Lease No. 590:2029 seeking some 19,373 square feet of office space, plus of minus

   3%.

   
   

3. The Petitioners presently lease office space to the Department in the Inverness, Florida, District Three service area. This office space is located within the preferred zone set forth in Attachment B to the ITB. In addition to the presently leased space, the Petitioner intends to offer additional space within the preferred area.

   
   

4. The Department's Leasing Manual HRS M 70-1 (Manual) sets out the procedure to be followed when the Department is seeking to lease office space of 2,000 square feet or more in

   privately owned buildings. Within this manual are the forms to be utilized for this purpose and, among other forms, is an ITB packet that contains a Bid Submittal Form (BSF) and, within the BSF is a page entitled Evaluation Criteria.

   
   

5. The Department followed the procedure set forth in the manual in advertising for competitive bids on Lease No.

   590:2029 for office space in Inverness, Florida service area of District Three and, in doing so, used the ITB packet that contains the BSF with the Evaluation Criteria page.

   
   

6. The BSF, including the Evaluation Criteria page, is

   a slightly modified version of the Department of General Services' (DGS) Request For Proposal Submittal Form - BPM 4136, incorporated by reference in Rule 13M-1.015(3)(e), Florida Administrative Code, as a suggested format.

   
   

7. The Evaluation Criteria page of the Department's

   BSF contains nine of the eleven evaluation criteria set forth on the evaluation criteria page of the BPM 4136, but does not place any limit on the weight of award factors as does BPM 4136 on two of the same criteria used by the Department.

   
   

8. The Evaluation Criteria set out in paragraph C. 2.

   and 4. of BPM 4136 which corresponds to paragraph 1(a) and 2(c) of the Department's Evaluation page, provide that award factors for these two criteria should not exceed ten, whereas the Department does not place a limit on the award factors for any of the criteria.

   
   

9. The two Evaluation Criteria on BPM 4136 that do not appear on the Department's Evaluation Criteria page address the availability of dining facilities and proximity of offered space to other Department activities and public services.

   
   

10. Both the BSF and BPM 4136 are used in bidding for space in existing facilities and, therefore, require a scaled floor plan showing present configuration, with measurements that equate to the net rentable square footage using the Standard Method of Space Measurement.

    
    

11. The BSF does not attach a "floor plan for suggested configuration of offices and rooms" as does the BPM 4136 but does provide the number, types and sizes of rooms to be placed in the existing facility. Both forms leave the final configuration of the floor plan to the successful bidder and the lessee. The Department's reasoning for not including a "suggested floor plan" is that this may reduce the number of prospective bidders due to the varied configuration of existing facilities in the bid area.

    
    

12. The majority of the clients to be served by the Department in Citrus County, Florida reside within the preferred zone shown as Attachment B. However, there may be other areas where a lesser concentration of clients may be served by

    "outposting". That is, servicing those clients on a regular scheduled basis at other smaller facilities within an area outside of the preferred zone.

    
    

13. The Department no longer requires the facility to

    be under one roof but how co-location is accomplished is important to the efficient utilization of services and supervision of staff. Elderly and handicapped clients experience difficulty in utilizing needed services (when more than one service is needed) because of distance between buildings.

    
    

14. Department clients frequently utilize the services of more than one program and such multi-service utilization is projected to increase in the future.

    
    

15. Public transportation in Citrus County, Florida is partially funded by the Department to assist its clients and is uniformly available to the clients in the Inverness services area.

    
    

16. The Department did not prepare any studies of functional space needs, staff space needs, client needs, client demographics or client transportation needs before or after the ITB was advertised.

    
    

17. The Evaluation Criteria did not include a factor for future expansion even though the Department's caseload is projected to increase.

    
    

18. In accordance with the procedure set forth in the Manual an Evaluation Committee (Committee) was appointed to determine, among other things, the award factor or weight to be placed on the nine Evaluation Criteria set forth on the Evaluation Criteria page of the BSF. The committee determined the significance of the nine criteria on the Evaluation page to the Department's needs in regard to Lease No. 590-2029 and awarded a weight factor in accordance with the significance of the criteria. Those criteria most significant to the Department's needs received the highest weight. These award factors were added to the Evaluation page of the BSF at the time the ITB was advertised. No additional Evaluation Criteria were used by the Committee.

    
    

19. There was insufficient evidence to show that Committee's action in determining the weight to be given the nine criteria was arbitrary or capricious or unlawful even though different weights had been placed on some of the same criteria in the 1988 ITB. Likewise, there was insufficient evidence to show that any of the specifications set forth in the ITB did not promote fair competition or otherwise reflect normal policy or, that the criteria were designed to favor a specific location or prospective bidder within the preferred zone.

    
    

20. The procedure and the forms set forth in the

    Manual and used by the Department, including the procedure followed by the Evaluation Committee in putting together the ITB for Lease No. 590:2029, comports substantially with all

    substantive provisions of Chapter 13M-1, Florida Administrative Code, and more specifically with Rule 13M-1.015, Florida Administrative Code. The differences, such as they are, are not substantial, nor is there any extrinsic or intrinsic divergence from the substance of the rule such as to mislead any potential bidder who sought to address the ITB.

    
    

    CONCLUSIONS OF LAW

    
    

21. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, this proceeding pursuant to Sections 120.56(5) and 120.57(1), Florida Statutes.

    
    

22. In accordance with the authority granted under Section 255.249(2), Florida Statutes, DGS promulgated Chapter

    13M-1, Florida Administrative Code, and, more specifically, Rule 13M-1.015, Florida Administrative Code, setting out the procedure for soliciting and accepting competitive proposals for leased space of 2,000 square feet or more in privately owned buildings and for evaluating the proposals received, as required by Section 255.249(2)(b), Florida Statutes.

    
    

23. Rule 13M-1.015(3)(a), Florida Administrative Code, provides for the agency soliciting the bid to draw the specification in general terms so as to afford each prospective lessor interested in submitting a proposal, knowledge of the agency's space requirements and, to structure the specifications so that no specific location or lessor is favored. Rule 13M- 1015(3) (b), Florida Administrative Code, sets forth certain specifications that should be provided to each prospective bidder which includes an appropriate floor plan of space needed showing partitioning and other physical requirements.

    
    

24. Rule 13M-1.01s(5)(b), Florida Administrative Code, requires the user agency, in conjunction with preparing specifications, to develop weighted evaluation criteria, with the criteria item most significant to the user agency's needs bearing the highest weight.

    
    

25. Section 255.25(2)(c), Florida Statutes, requires each state agency to develop procedures and adopt rules to insure that the leasing practices of that agency are in substantial compliance with the rules adopted by DGS pursuant to specific sections of the statutes.

    
    

26. The Department's Leasing Manual HRS M 70-1 (Manual) which includes the Invitation To Bid For Existing Facilities (ITB) and contains the Bid Submittal Forms (BSF) that has an Evaluation Criteria page, was used in soliciting the lease in this case. The policy announced in the Manual was challenged in a Section 120.56, Florida Statutes, proceeding and was declared to be rule that was invalid for lack of promulgation pursuant to Section 120.54, Florida Statutes. Thomas V. Infantino , Sr., et ux v. Department of Health and Rehabilitative Services, Case No. 89-6637R (Final Order entered October 1, 1990). This does not preclude the Department from applying the policy, but in doing so

    the Department is required to fully explicate such policy. The burden of going forward shifts to the Department to explicate, support and define the policy. Gulf Coast Home Health Service of Florida, Inc. v. Department of Health and Rehabilitative Services, 513 So.2d 704 (1st DCA Fla. 1987).

    
    

27. The Department's interpretation of Chapter 13M-1, Florida Administrative Code, in developing procedures setting out its leasing practices which are embodied in the Manual is a reasonable and permissible construction of that rule. Therefore, having concluded that the Department's interpretation of the rule is a permissible one, the Department's policy has been

explicated, supported and defended by an adequate record foundation. The Department has sustained its burden in this regard. Likewise there has been no showing that the specification contained in the ITB are unreasonable, or promote unfair competition or are not in accordance with the law.

RECOMMENDATION

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

RECOMMENDED that a Final Order be entered by the Department dismissing Petitioners' Formal Notice of Written Protest.

DONE and ENTERED this 2nd day of October, 1990, in Tallahassee, Florida.

WILLIAM R. CAVE

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 2nd day of October, 1990.

APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 89-6017BID

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the Proposed Findings Of Fact submitted by the parties in this case.

Specific Rulings on Proposed Findings of Fact Submitted by the Petitioner

1. Adopted in Finding of Fact 1.

2. - 3. Covered in the Preliminary Statement

4. 6. Adopted generally in Findings of Fact 4 - 11, otherwise not material or a restatement of testimony and stated as a finding of fact.

7. - 8. Not material or relevant.

9. - 22. Adopted generally in Findings of Fact 4 - 11, 15, 17 and 18, otherwise not material or a restatement of testimony and not state as a finding of fact.

23. - 24. Not material or relevant.

23. - 24.*Covered in the Conclusions of Law, otherwise not material or a restatement of testimony and stated as a finding of fact.

25. - 27. Adopted in Findings of Fact 2 and 16.

28. - 31. Not material.

1. Adopted in Finding of Fact 16, otherwise a restatement of testimony and not stated as a finding of fact.

2. - 37. Not material or a restatement of testimony and stated as a finding of fact.

Specific Rulings on Proposed Findings of Fact Submitted by the Respondent

COPIES FURNISHED:

Thomas V. Infantino, Esquire Post Office Drawer 30

Winter Park, FL 32609

Arthur R. Shell, Esquire 1000 Northeast 16th Avenue Gainesville, FL 32601

Sam Powers, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Blvd.

Tallahassee, FL 32399-0700

Linda Harris, General Counsel Department of Health and Rehabilitative Services

1323 Winewood Blvd.

Tallahassee, FL 32399-0700 Case No. - 89-6017BID

Docket for Case No: 89-006017BID

Orders for Case No: 89-006017BID