STATE OF FLORIDA

DEPARTMENT OF HEALTH AND REHABILITATIVE SERYICES

PERRINE MARLIN, INC.,

Petitioner, CASE NO.: 90-4413BID DEPARTMENT OF HEALTH AND

REHABILITATIVE SERVICES,

Respondent, PAT PROCACCI,

Intervenor.

/ LIMA DEVELOPMENT CORPORATION,

Petitioner, CASE NO.: 90-4505BID

vs.

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES,

Respondent,

and

PAT PROCACCI,

Intervenor.

/

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 PROCACCI

In this proceeding the parties stipulated that the issues to be decided were: one, whether the department's decision to reject all bids was improper and; two, if rejection was improper, which bidder should be awarded the lease contract. (See Recommended Order, page 3 and 28.)

In his exceptions, Procacci now seeks to disregard the second prong of the stipulation and asserts that only a review of the record - basis of the initial rejection decision is appropriate. This view is inconsistent with the nature of a Section 120.57, Florida Statutes, proceeding, a de novo, evidentiary hearing, which gives all substantially affected persons the opportunity to change the agency's mind.1 Capeletti brothers vs. State, 432 So. 2d 1359 (Fla. 1st DCA 1983).

This bid protest proceeding commenced in June 1990, and by law the solicitation process was stopped. Section 120.53(5)(c), Florida Statutes. Competent, substantial evidence supports the Hearing Officer's recommendation that the Lima proposal be accepted. The exceptions are rejected.

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.

Based upon the foregoing, it is

ADJUDGED, that the bid of Lima Development Corporation for Lease Number 590:2007 be accepted and that the lease contract be awarded to Lima Development Corporation.

DONE and ORDERED this 3rd day of May, 1991 in Tallahassee, Florida.

Robert B. Williams Acting Secretary Department of Health and

Rehabilitative Services

by

C. M. Woody

Deputy Secretary for Administration

ENDNOTE

1/ The conclusion of law in Dr. Courtenay vs. Department of Health and Rehabilitative Services, 12 FALR 2226 (HRS 1990) should have been modified to make it clear that, when invoked, a Section 120.57 review of an initial bid decision is part of the decision making process, not just an appellate review of the record - basis of the initial decision.

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:

Linda M. Rigot Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399 1550

Riley Davis, Esquire Wilbur E. Brewton, Esquire

TAYLOR, BRION, BUKER & GREENE

Post Office Box 111889 Tallahassee, FL 32302 3189

Jose E. Martinez, Esquire 2601 South Bayshore Drive Suite 1600

Miami, FL 33133

Robert A. Sweetapple, Esquire Alexander D. Varkas, Jr., Esquire SWEETAPPLE, BROEKER & VARKAS, P. A.

465 East Palmetto Park Road Boca Raton, FL 33432

Morton Laitner, Esquire Department of Health and

Rehabilitative Services

401 NW 2nd Avenue, S424 Miami, FL 33128

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing was sent to the above named people by U.S. Mail this 8th day of May, 1991.

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: 90-004413BID

Orders for Case No: 90-004413BID