STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

METRO-DADE DEPARTMENT OF JUSTICE ) ASSISTANCE, )

)

Petitioner, )

)

vs. ) CASE NO. 90-2334BID

)

DEPARTMENT OF LABOR AND )

EMPLOYMENT SECURITY, )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard pursuant to notice on May 18, 1990 by Stephen F. Dean, to whom this case was reassigned because of having heard a similar case, Independent Child Abuse Relief Enterprises, Inc. vs. Department of Labor and Employment Security, DOAH Case NO. 90-2255B1D. The Recommended Order in the preceding case was entered prior to the hearing in this case and both parties in this case were provided with copies of the Order in that case and were aware of the prior findings and conclusions in that case. However, the instant case differs from Case No. 90-2255B1D because the agency's authority to treat the grant process as a bid was challenged by Petitioner in the initial letter requesting a formal hearing.

This is a very important distinction because, whereas the principal issue in Case NO. 90-2255B1D was whether I-Care, Inc., had followed the bid specifications, the principal issue in this case is whether the Respondent properly treated the grant program as though it were a bid. These are significantly different issues and based upon the facts bearing on those issues, two entirely different results have been reached. This Order seeks to explain the basis for the decision in this case and to explain why it differs from the decision in' Case NO. 90- 2255BID.

APPEARANCES

FOR PETITIONER: Steven B. Bass, Esquire

Assistant County Attorney Metro-Dade County

Metro-Dade Center

111 N.W. 1st Street Suite 2810

Miami, Florida 33128-1993

FOR RESPONDENT: Edward A. Dion, Esquire

Department of Labor and Employment and Security

Suite 131, Montgomery Building 2562 Executive Center Circle, East Tallahassee, Florida 32399-0657

STATEMENT OF THE ISSUES

The issues in this case are twofold: (1) Did the Respondent properly adopt its bid methodology for processing VOCA grants and, if not, (2) did the Respondent demonstrate a suitable factual base for its non-rule policy.

PRELIMINARY STATEMENT

The parties stipulated to the introduction of the documentary evidence: Respondent's Exhibits 1 through 6 and Petitioner's Exhibit 1. There was no testimony presented by the agency. The essential facts regarding the manual, notice of intent and application were undisputed.

Both parties presented proposed findings, of fact, which were read and considered. The Appendix to this Recommended Order, attached hereto and by reference made a part hereof, contains a list of the proposed findings and stated which findings were adopted and which findings were rejected and why.

FINDINGS OF FACT

1. The Federal Victim of Crimes Act ("VOCA"), 42 U.S.C., Sections 10601- 10605, authorizes the granting of federal funds to the individual states for the purpose of awarding grants to eligible subgrantees who provide direct assistance to victims of crime. The U.S. Department of Justice, Office of Victims of Crime, has published guidelines for the implementation of the program. Listed among the factors that a state should take into account when distributing VOCA awards are (1) the range of victim services needed throughout the state, (2) the track record of continuation programs, and (3) the extent to which other sources of funding are available for proposed programs. See, 54 Fed. Reg. 21499, 21503 (May 18, 1989)(Respondent's Exhibit

   
   

2. The federal guidelines provide, inter alia, that the states which receive these monies have sole discretion as to which programs within the state shall be awarded subgrants, as long as the subgrantees meet the eligibility criteria of VOCA and the guidelines.

   
   

3. The Department of Labor and Employment Security, Division of Workers' Compensation, Bureau of Crimes Compensation and Victim Witness Services (the "Bureau") is the agency of the State of Florida responsible for administering the VOCA subgrant program.

   
   

4. The Petitioner, Metro-Dade Department of Justice Assistance ("MDJA"), is a nonprofit organization based in Dade County, Florida, which is devoted to providing specialized psychological counseling and related services to victims of child sexual abuse and domestic violence in previously underserved populations; both priority areas under VOCA. Petitioner has been a VOCA grant recipient for the last four years. Petitioner's subject VOCA grant application for FY 1990-91 is the fifth consecutive year in which it has sought VOCA funds through Respondent. Petitioner is currently the only program in Dade County providing free specialized counseling to victims of child sexual abuse and domestic violence. The VOCA award Petitioner is seeking for FY 1990-91 would fund specialized counseling, outreach programs, intervention services, and other related services for between 450-550 victims of child sexual abuse and domestic violence in Dade County.

5. Since the inception of the VOCA program, the Bureau has solicited applications from the State's victim services organizations by means of a request for bid process. The Bureau annually prepares and distributes a VOCA grant manual and application and awards subgrants on the basis of a scoring system set forth in the VOCA grant manual.

   
   

6. On March 6, 1990, Respondent sent all prospective applicants, who had indicated by telephone or letter of intent to apply for FY 1990-1991 VOCA funding, a grant manual and application packet, including necessary forms, instructions and filing deadlines, with which to apply for FY 1990-1991 VOCA continuation funding and new and expanded funding. Included with these materials was a grant application timetable notifying respective applicants of deadlines for filing both a Notice of Intent to submit an application and the grant application itself. In addition, this timetable advised prospective applicants that an applicants' conference would be held in Tallahassee, Florida, on March 22, 1990, at 1:00 p.m., "to provide all applicants the opportunity to ask specific questions about the manual or the application process."

   
   

7. Although MDJA did not attend the applicants' conference, at the applicants' conference, no one commented or questioned the requirement for filing a Notice of Intent or objected to the deadline for filing the same. The applicants' conference provided a question and answer session through which the Bureau was able to clarify most of the questions posed by the 50 or so potential applicants who attended the conference. No substantive changes to the VOCA grant manual or forms were recommended by the attendees and the Bureau did not make any substantive revisions to the VOCA grant application requirements; specifically, no comment or revisions were made on the Notice of Intent provisions.

   
   

8. The manual required for the first time a Notice of Intent. The provisions relating to the Notice of Intent are found in three (3) separate parts of the VOCA grant manual and the application:

   
   

   1. Page 1 of the VOCA Grant Manual reads:

      
      

      Deadlines for the submission of Notices Intent to Submit a Proposal and Grant Application deadlines must be followed. Any Notices of Intent to Submit a Proposal and Grant Application deadlines must be followed. Any Notices of Intent to Submit a Proposal and Applications received after the deadline will not be considered for funding and will be returned to the applicant.

      
      

   2. Section II.A.2. of the VOCA Grant Manual provides:

      
      

      2. Notice of Intent to Submit a Proposal. A Notice of Intent to Submit a Proposal must be submitted by all programs intending to file a proposal or they will not be permitted to submit an application. Applicants must complete the entire form provided in the, Application. The purpose of the Notice of Intent is to estimate the number of proposals and the total amount of money being

      requested. A Notice of Intent to Submit a Proposal does not constitute an application for VOCA funds. The Notice of Intent to:

      Submit a Proposal must be signed by the appropriate agency representative designated to sign on behalf of the agency. The original Notice and one copy must be submitted for it to be accepted by the department. The deadline for accepting a Notice of Intent to Submit a Proposal is March 29, 1990, at 2:00 p.m. Eastern Standard Time. Notices arriving after this time will not be considered for funding and will be returned. (FAXED COPIES ARE NOT ORIGINALS AND THEREFORE WILL NOT BE ACCEPTED.)

      
      

   3. Notice of Intent to Submit a Proposal for the 1990- 91 Victims of Crime Act Funding ("VOCA"), also provides:

      
      

      Notices are due no later than March 29, `1990 at 2:00 p.m. Eastern Standard Time. Any Notices received after this time and date will be returned to the applicant and will not be considered for funding.

      
      

9. In late February or early March of 1991 Respondent received a telephone call from an employee of Petitioner notifying the Respondent that MDJA would be filing a grant application for FY 1990-91 VOCA funds and specifically requesting Respondent to send to MDJA a VOCA grant manual and related application forms. It is uncontroverted that MDJA, made this telephone call, that it was received by Respondent, and that pursuant thereto, Respondent sent the aforementioned VOCA packet and related forms to MDJA.

   
   

10. The Executive Director of MDJA completed and signed the Notice of Intent form provided by Respondent on Friday, March 23, 1990. This form was sent certified mail to Respondent on Monday morning, March 26, 1990, via courier. Although dispatched from MDJA's office on March 26, 1990, for some inexplicable reason, the Notice of Intent was not postmarked and dispatched from the mail room until Wednesday afternoon, March 28, 1990, and was not received by the office of Respondent until 10:05 a.m. on Friday, March 30, 1990, approximately four business hours after the March 29, 1990, 2:00 p.m. deadline. It was postmarked March 28, 1990.

    
    

11. On March 30, 1990, fearing that MDJA's Notice of Intent may have been delayed in the mail, the Bureau telephoned MDJA at approximately 9:00 a.m. to inquire if it had mailed the Notice of Intent form. MDJA then informed Respondent that its Notice of Intent had been sent on Monday, March 26 1990, and that such Notice should have been received by the Thursday deadline. Shortly thereafter, at 10:05 a.m., on March 30, 1990, MDJA's Notice of Intent did arrive at Respondent's office, via certified mail.

    
    

12. MDJA filed its actual application for VOCA funding for FY 1990-91 prior to the April 12, 1990 for applications.

    
    

13. It is not disputed that Respondent received oral notification from MDJA, prior to March 29, 1990, that MDJA would be filing an application for VOCA funding far FY 1990-91.

14. It is not disputed that MDJA was a four-year continuation program. All of the information sought in the Notice of Intent form, including MDJA's name, contact person, address, telephone number, whether the applicant was a continuation program, and the 1990-91 amount sought (which is limited by what the MDJA received the previous year, plus 5%), was already in Respondent's possession prior to the March 29, 1990 filing deadline. It is uncontroverted that MDJA's Notice of Intent being received approximately four business hours after the deadline in no way inconvenienced Respondent or in any way impaired their ability to carry out their duties aid responsibilities.

    
    

15. The Respondent, by letter dated April 3, 1990, advised MDJA that it was ineligible for funds in the 1990-91 grant year due to its failure to comply with the March 29, 1990 deadline.

    
    

16. Notices of Intent to Submit a Proposal were submitted by 91 applicants. Two (2) of those Notices were received after the deadline (including MDJA's), and the Bureau advised both of them that they were ineligible for funding.

    
    

17. One such ineligible applicant, I-Care, also filed a protest. A hearing was held on March 1, 1990, before a Hearing Officer of the Division of Administrative Hearings. Said Hearing Officer issued a Recommended Order on May 11, 1990 recommending that the Department enter a Final Order denying I-Care's petition.

    
    

    CONCLUSIONS OF LAW

    
    

18. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties in this case. Sections 120.53 and 120.57, Florida Statutes.

    
    

19. The Florida Administrative Procedure Act, Section 120.50, et seq., Florida Statutes, (hereinafter "APA"), applies to all agency action affecting substantial interests of parties, and such Act subjects all agency action to judicial review. See, Commercial Consultants Corp. v. Dept. of Business Reg, 363 So.2d 1162, 1163 (Fla. 1st DCA 1978).

    
    

20. Respondent argues that this case is governed by Subsection 120.53(5), Florida Statutes, which provides in pertinent part:

    
    

    (5) An agency which enters into a contract pursuant to the provisions of ss.

    282.301-282.313, Chapter 255, Chapter 287, or Chapters 334-349 shall adopt rules specifying procedures for the resolution of protests arising from the contract bidding process.

    
    

21. For Section 120.53(5) to be applicable here, Respondent must be an agency that entered into a contract pursuant to the provisions of Chapter 282, Chapter 255, Chapter 287 or Chapters 334-349. Chapter 282, Florida Statutes, deals with communications and data processing, Chapter 255 deals with public property and public buildings, Chapter 287 deals with purchasing, motor pools, and communications services, and Chapters 334-349 deal exclusively with highways, bridges and ferries. Section 120.53(5) is expressly limited to contracts entered into by agencies pursuant to the Chapters enumerated therein.

    The award of VOCA grants does not involve a contract entered into pursuant to any of the Chapters enumerated in Subsection (5) of Section 120.53. The instant case falls outside the purview of Section 120.53(5).

    
    

22. MDJA asserted in its initial request for hearing that the Respondent's action was "an invalid exercise of delegated legislative authority." This is rule challenge language pursuant to Sections 120.54(4) and 120.56(1), Florida Statutes. MDJA limited its challenge specifically to the requirement for the Notice of Intent; however, the entire process represented by the VOCA manuals constitutes a set of rules setting forth the agency's application of bid challenge methodology to the award of VOCA grants.

23. Section 120.52(16) of the APA defines "Rule" broadly: "Rule" means each agency statement of

    general applicability that implements, interprets, or prescribes law or policy or describes the organization, procedure, practice requirements of an agency and includes any form which imposes any requirement or solicits any information not specifically required by statute or an existing rule. The term also includes the amendment or repeal of a rule.

    
    

24. The APA expressly provides that before an agency can adopt or amend a rule, it must comply with adoption procedures enumerated in Section 120.54, Florida Statutes, which provides, among other things:

    
    

    1. Prior to the adoption, amendment,

       or repeal of any rule...an agency shall give notice of its intended action, setting forth a short and plain explanation of the purpose and effect of the proposed rule, the specific legal authority under which its adoption, is authorized, and a summary of the of

       the economic impact of the proposed rule on all persons affected by it. (emphasis added).

       1. Except as otherwise provided in

          this paragraph, the notice shall be mailed to the committee, to all persons named in the proposed rule, and to all persons who have made requests of the agency for advance notice of its proceedings at least 14 days prior to such mailing. The agency shall also give such notice as is prescribed by rule to those particular classes of persons to whom the intended action is directed....

       2. The notice shall be published in

    the Florida Administrative Weekly not less than 28 days prior to the intended action....

    (d) The failure to provide an adequate statement of economic impact is a ground, for holding the rule invalid....

    4(a) Any substantially affected person may seek an administrative

    the invalidity of any proposed rule on the ground that the proposed rule is an invalid exercise of delegated legislative authority. 4(b) The request seeking a

    determination under this subsection shall be in writing and must be filed with the division within 21 days after the date of the publication of the notice. It must state with particularity the provisions of the rule or economic impact statement alleged to invalid with sufficient explanation of the facts or grounds for the alleged invalidity and facts sufficient to show that the person challenging the proposed rule would be substantially affected by it.

    
    

25. It is well settled under Florida law that agency rules not adopted in accordance with the requirements prescribed by Section 120.54, Florida Statutes, are void. See, e.g., Straughn v. O'Riordan, 338 So.2d 832, 834 (Fla. 1976 (under the Florida APA, agency rules are not enforceable in the absence of publication in the manner prescribed by law).

    
    

26. The 1990-91 VOCA grant manual was a rule of general applicability that affects substantial interests, solicits information not required by statute, and requires compliance. The requirement that the Notice of Intent be filed is a rule subject to the adoption procedure requirements enumerated in Section 120.54, Florida Statutes. See, Balsam v. Dept. of Health & Rehab. Services, 452 So.2d 976, 977 (Fla. 1st DCA 1984)("A rule is any agency statement of general applicability that prescribes laws or policy or describes the organization, procedure, or practice requirements of any agency."); see also Amos v. Dept. of Health & Rehab. Services, 444 So.2d 43, 46-7 (Fla. 1st DCA 1983)("Whether an agency's statement is a rule which must be adopted in accordance with statutory procedure turns on the effect of the statement and not on the agency's characterization by some appellation other than `rule'.")

    
    

27. An agency can enunciate incipient policy through the process of issuing final orders, case by case, in areas that are very complex or involve new areas of regulation. However, there is no showing that this area is so complex that a step-by-step, case-by-case approach is necessary. To the contrary, the Respondent published a comprehensive manual. When an agency elects to proceed in a case-by-case adjudicative manner, it must be prepared to establish at hearing a factual basis for its adoption of the non-rule policies. In this case, the Respondent presented no evidence to substantiate its adoption of the non-rule policy to treat applications for grants as bids. Looking specifically at the rejection of MDJA's application because MDJA did not file its Notice of Intent before the deadline, the Respondent presented no evidence to support this specific rule.

    
    

28. Having concluded that the award of grants by Respondent through a bid process was an improper rule, the issue becomes whether the Respondent had good cause to reject MDA's application because its Notice of Intent was four business hours late. The Respondent's discretion in the instant case is more restricted than it would be in a bid case. However, even in a bid case, where there is no real harm done, an agency may consider a late bid, Hewitt Contracting Co. v. Melbourne Regional Airport Authority, 528 So.2d 122 (Fla. 5th DCA 1988). In the

    instant case, only the Notice of Intent late and most of the information requested in the Notice of Intent had already been conveyed verbally to the Respondent. There was no showing that the lateness impacted the Respondent.

    
    

29. The Respondent's case is based upon the latitude granted agencies in bid cases when the bid specifications are not met and procedures not followed. However, the Respondent failed to properly adopt the bid methodology as a rule. In the absence of a rule, there is no reasonable basis to reject MDJA's application because its Notice of Intent was four hours late.

    
    

30. This case reaches a result which is contrary to Case NO. 90-2255B1D because in that case, I-Care did not challenge the agency's methodology until presenting its proposed recommended order. Its challenge to the non-rule policy was untimely. In the instant case, MDJA challenged the methodology in its original letter, and the Respondent failed to present evidence showing a legitimate, reasonable explanation of its policy.

RECOMMENDED that the application of MDJ be accepted and considered on its individual merits.

DONE AND ENTERED this 20th day of June, 1990, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN

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 20th day of June, 1990.

COPIES FURNISHED:

Hugo Menendez, Secretary

Department of Labor and Employment Security Berkeley Building, Suite 200

2590 Executive Center Circle, East Tallahassee, FL 32399-2152

Stephen Barron, Esq.

General Counsel

Department of Labor and Employment Security

131 Montgomery Building

2562 Executive Center Circle, East Tallahassee, FL 32399-0657

Steven B. Bass, Esq. Assistant County Attorney Metro-Dade County

111 N.W. 1st Street Suite 2810

Miami, FL 33128-1993

Edward A. Dion, Esq.

Department of Labor and Employment Security Suite 131, Montgomery Building

2562 Executive Center Circle, East Tallahassee, FL 32399-0657

APPENDIX TO RECOMMENDED ORDER CASE NO. 90-2334BID

Petitioner's Proposed Finding of Fact

1. Adopted as paragraph 1.

2. Adopted as paragraph 3.

3. Irrelevant.

4. Adopted as paragraph 4.

5. Adopted as paragraph 4.

6. Repetitive and cumulative.

7. Adopted as paragraph 7.

8. Adopted as paragraph 6.

9. Adopted as paragraph 9.

10. First sentence adopted as paragraph 5; second sentence is irrelevant; third sentence adopted as paragraph 6.

11. Adopted as paragraph 8.

12. Adopted as paragraph 7.

13. Irrelevant.

14. Adopted as paragraph 8.

15. Adopted as paragraph 10.

16. Adopted as paragraph 11.

17. Adopted as paragraph 12.

18. Adopted as paragraph 13 and 14; last sentence is rejected as contrary to the evidence.

Respondent's Proposed Findings of fact

1. Adopted as paragraph 1.

2. Adopted as paragraph 2.

3. Adopted as paragraph 3.

4. Adopted as paragraph 5.

5. Included in other findings.

6. Included in other findings.

7. Adopted as paragraph 6.

8. Adopted as paragraph 7.

9. Adopted, same as Petitioner's paragraph 16.

10. Adopted as paragraph 15.

11. Adopted as paragraph 16.

12. Adopted as paragraph 17.

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

    AGENCY FINAL ORDER

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

    
    

    STATE OF FLORIDA

    DIVISION OF ADMINISTRATIVE HEARINGS

    
    

    METRO-DADE DEPARTMENT OF JUSTICE ASSISTANCE,

    
    

    Petitioner,

    
    

    vs. CASE NO. 90-2334BID

    
    

    DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY

    
    

    Respondent.

    /

    
    

    FINAL ORDER

    
    

    THIS CAUSE came on for the purpose of issuing a final agency order. The Hearing Officer assigned by the Division of Administrative Hearings (DOAH) in the above entitled cause submitted a Recommended Order to the Department of Labor and Employment Security (DLES). A copy of that Recommended Order is attached hereto and incorporated herein. The Respondent DLES through its counsel timely filed exceptions to the Recommended Order. The Agency's Exceptions to the Recommended Order are attached hereto and incorporated herein. At issue in this case is whether the application of Metro-Dade Department of Justice Assistance should be considered for VOCA funding. After having reviewed the complete record in this case the following findings of fact and conclusions of law are adopted.

    
    

    FINDINGS OF FACT

    
    

    1. The Agency accepts the findings of fact as set forth in the Recommended Order for paragraphs 1 through 7, paragraphs 9 through 13, and paragraphs 15 through 17.

       
       

    2. The Respondent filed an exception to paragraph 8 of the Findings of Fact objecting to the allegation that the VOCA Manual required for the first time a Notice of Intent. This finding is not based on competent substantial evidence and is not supported by the record. This exception is therefore, ACCEPTED.

       
       

    3. The Respondent filed exception to paragraph 14 of the Findings of Fact contesting the allegation that the Respondent was not inconvenienced by the late filing of the Notice of Intent to submit a bid. This finding is not based on competent substantial evidence and is not supported by the Record. This exception is, therefore, ACCEPTED.

       CONCLUSIONS OF LAW

       
       

       The Respondent filed numerous exceptions to the Conclusions of Law in the Recommended Order. They will be addressed separately.

       
       

    4. The Respondent excepted to the Conclusion of Law that the award of VOCA grants does not involve a contract entered into pursuant to any of the Chapters enumerated in Subsection (5) of Section 120.53. Chapter 287, Florida Statutes, deals with procurement of personal property and services. Section 287.057 specifically deals with the procurement of contractual services such as those that are in dispute in the case sub judice. Therefore the VOCA grant does involve a contract entered into pursuant to Section 120.53(5), Florida Statutes. Respondent's exception is well taken and is therefore ACCEPTED.

       
       

    5. Respondent excepted to the Conclusion of Law that Petitioner's "petition" constituted a rule challenge pursuant to Section 120.54(4) and Section 120.56(1), Florida Statues Respondent argues that Section 120.56(2), Florida Statutes, requires that a petition challenging an agency rule "shall state with particularity facts sufficient to show the person seeking relief is substantially affected by the rule and facts sufficient to show the invalidity of the rule." Likewise, Section 120.54(4)(b) requires the petition "must state with particularity the provisions of the rule or economic impact statement alleged to be invalid with sufficient explanation of the facts or grounds for the alleged invalidity . cursory review of Petitioner's "petition" clearly shows that the same fails to comply with these Sections.

       
       

       Respondent's exception alleged further that as discussed at the hearing, on May 16, 1990, counsel for Petitioner advised counsel for Respondent that Petitioner would not proceed on the basis of a rule challenge. (Tr. 13-14).

       Respondent relied upon said representation and was not prepared to defend a rule challenge at the hearing. In further support of this exception, it must be noted that at the time of the hearing, Petitioner filed a Memorandum in Support of Petitioners Protest of Department's Refusal to Consider Grant Application.

       Said Memorandum did not address the existence of any purported rule challenge, thereby further evidencing Petitioner's knowing waiver of said issue.

       Respondent's exception to this Conclusion of Law is well taken and is therefore ACCEPTED.

       
       

    6. Respondent further excepts to the Hearing Officer's failure to permit testimony on the issue of the grant process being considered as a rule. Since Respondent's exceptions to the rule issue have been addressed above for failure to meet the pleading requirements of Section 120.54(4)(b), Florida Statutes, this exception is moot and is therefore REJECTED.

       
       

    7. Respondent excepts to the Conclusion of Law that the 1990-91 VOCA grant manual was a rule of general applicability and, therefore, required to be promulgated as such pursuant to Chapter 120, Florida Statutes. As Respondent correctly notes, and as set out in finding of fact No. 5 in the Recommended Order, the Agency solicits applications by means of a request for bid process. Section 287.057, Florida Statutes, sets forth the manner in which state agencies must solicit such contracts for services. An Agency interpretation of a statute which simply reiterates the legislature's statutory mandate and does not place upon the statute an interpretation that is net readily apparent from its literal reading, nor in and )f itself purports to create rights, or require compliance, or otherwise have direct and consistent effect of law, is not an unpromulgated rule, and actions based upon such interpretation are permissible without requiring the agency to go through rulemaking. St. Francis Hospital, Inc. v.

       Department of Health and Rehabilitative Services, 553 So.2d 1351 (Fla. App. 1 Dist. 1989). The Respondent's argument that the Agency's actions pursuant to the dictates of specific statutory requirements not constituting a "rule" is well taken and is therefore ACCEPTED.

       
       

    8. Respondent, Department of Labor and Employment; Security, as a governmental agency soliciting bids, had the discretion to waive irregularity of lateness and to accept bids under certain factual circumstances. Hewitt Contracting Company v. Melbourne Regional Airport Authority, 528 So2d 122 (1988).

It is therefore ORDERED that under the facts of this case that the application of Metro-Dade Department of Justice Assistance be accepted and considered on its individual merits.

DONE AND ENTERED this 4th day of September, 1990, in Tallahassee, Leon County, Florida.

CHARLES M. MACON

Acting Director, Division of Workers' Compensation

301 Forrest Building 2728 Centerview Drive

Tallahassee, Florida 32399-0680

Copies furnished to:

Steven B. Bass, Esquire Assistant County Attorney

Metro-Dade Department of Justice Assistance

111 N.W. 1st Street, Suite 2810 Miami, Florida 33128-1993

Clerk, Division of Administrative Hearings 1230 Apalachee Parkway

The DeSoto Building Tallahassee, Florida 32399-1550

Hugo D. Menendez, Secretary

Florida Department of Labor and Employment Security Room 303, Hartman Building

2012 Capital Center S.E. Tallahassee, Florida 32399-2152

Stephen D. Barron, General Counsel

Florida Department of Labor and Employment Security Room 307, Hartman Building

2012 Capital Center S.E. Tallahassee, Florida 32399-0657

Docket for Case No: 90-002334BID

Orders for Case No: 90-002334BID