STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JONES FLOOR COVERING, INC. )

)

Petitioner, )

)

vs. ) CASE NO. 90-5224RU

) DEPARTMENT OF GENERAL SERVICES, )

)

Respondent. )

)

FINAL ORDER

This matter came on for hearing in Tallahassee, Florida, before Robert T. Benton, II, Hearing Officer of the Division of Administrative Hearings on August 29, 1990. The Division of Administrative Hearings received the hearing transcript on September 12, 1990.

The parties filed proposed orders on September 26, 1990. The attached appendix addresses proposed findings of fact by number.

APPEARANCES

For Petitioner: Bruce A. Leinback, Esquire

Cummings, Lawrence & Vezina, P.A. Post Office Box 589

Tallahassee, Florida 32302-0589

For Respondent: Susan B. Kirkland, Esquire and

Jim Bennett, Esquire

Suite 309, Knight Building 2737 Centerview Drive

Tallahassee, Florida 32399-0950 STATEMENT OF THE ISSUES

Whether a special condition in Department of General Services invitation to bid number 69-360-240-F is a rule and, if so, whether it is an invalid exercise of respondent's delegated legislative authority? Whether petitioner has standing to raise the question?

PRELIMINARY STATEMENT

After petitioner Jones Floor Covering, Inc., was advised that its low bid on certain items listed in respondent's invitation to bid, number 69-360-240-F carpet installed, had been rejected as unresponsive, it filed a timely notice of protest and subsequently a formal written protest which gave rise to bid dispute proceedings. Jones Floor Covering, Inc. v. Department of General Services, Case No. 90-5032BID. Respondent referred Case No. 90-5032BID to the Division of Administrative Hearings for hearing, in accordance with Section 120.57(1)(b)3., Florida Statutes (1989).

Petitioner subsequently initiated the present rule challenge proceedings, by filing its petition for administrative determination of the validity of unpromulgated rule directly with the Division of Administrative Hearings, in accordance with Section 120.56, Florida Statutes (1989). On petitioner's motion, the present case and Case No. 90-5032BID were consolidated for hearing.

FINDINGS OF FACT

1. The special condition in invitation to bid No. 69-360-240-F that petitioner challenges here provides:

   
   

   PUBLIC ENTITY CRIMES

   
   

   Any person responding with an offer to this invitation must execute the enclosed Form PUR 7068, SWORN STATEMENT UNDER SECTION

   287.133(3) (a), FLORIDA STATUTES, ON PUBLIC

   ENTITY CRIMES and enclose it with your bid. If you are submitting a bid on behalf of dealers or suppliers who will ship and receive payment from the resulting contract, it is your responsibility to see that copy(s) of the form are executed by them and are included with your bid. Failure to comply with this condition shall result in rejection of your bid.

   
   

   Joint Exhibit No. 1. Under the heading "Bid Conditions," Rule 13A-1.008(2), Florida Administrative Code, incorporates form PUR 7068 by reference, and requires that invitations to bid on term contracts include the form.

   
   

   Challenge Untimely

   
   

2. The parties stipulated in their prehearing stipulation as follows:

   
   

   "1. Respondent's Division of Purchasing advertised for competitive bidding for [a term contract for] carpet installed, bid number 69-360-240-F.

   
   

   "2. On or about April 19, 1990, the Division of Purchasing sent to prospective bidders a revised invitation to bid. [Like the original invitation to bid, the revised invitation to bid contained the following language:

   
   

   INTERPRETATIONS/DISPUTES: Any questions concerning conditions and specifications shall be directed in writing to this office for receipt no later than ten (10) days prior to the bid opening inquiries must reference the date of bid opening and bid number. No interpretation shall be considered binding unless provided in writing by the State of Florida in response to requests in full compliance with this provision. Any actual or prospective bidder who disputes the reasonableness, necessity or competitiveness of the terms and conditions of the invitation to Bid, bid selection or contract award recommendation, shall file such protest in

   form of a petition in compliance with Rule 13A-1.006, Florida Administrative Code.

   Failure to file a protest within the time prescribed in Section 120.53(5), Florida Statutes, shall constitute a waiver of proceedings under Chapter 120, Florida Statutes. Petitioner's Exhibit No. 5.]

   
   

   "3. The petitioner did not protest any of the terms and conditions of the invitation to bid within 72 hours of its receipt of the invitation to bid.

   
   

   "4. The petitioner timely submitted its bid pursuant to the above- referenced bid solicitation.

   
   

   "5. The bids were opened on May 16, 1990 and on July 23, 1990 the Division of Purchasing posted the official bid tabulation document.

   
   

   "6. The Division of Purchasing determined that the petitioner's bid was non-responsive.

   
   

   "8. On July 25, 1990, the petitioner timely filed its Notice of Intent of Protest with the respondent.

   
   

   "9. On August 3, 1990, the petitioner timely filed its Notice of Formal Written Protest and Petition for Formal Hearing.

   
   

   "10. On August 21, 1990, the petitioner filed a Petition for Administrative Determination of the Validity of Unpromulgated Rule challenging the special condition entitled `Public Entity Crimes' on page four of the invitation to bid."

   
   

   No Future Effect

   
   

3. Already superseded in subsequent invitations by a revised version (T.142, 171), any special condition like the one petitioner challenges will soon undergo further change. Effective October 1, 1990, Section 287.133(3)(a), Florida Statutes will be amended to read:

   
   

   * Prior to entering into a contract a

   person shall file a sworn statement with the contracting officer . . . <<for the calendar year. The department shall adopt by rule a standard sworn statement . . .. The form

   shall include>> [[on a form to be promulgated by the department by rule, including the

   following information:]]

   1. The name of the person.

   2. The business address . . .

      
      

      * Note: In the above quotation, language added to the statute

      is within the <<>>; deleted language is within the [[]].

      
      

      Chapter 90-33, Sections 1 and 3, Laws of Florida (1990) (language added or deleted by Chapter 90-33). "Only if the responding bidder does not have the [sworn statement on public entity crimes] . . . on file with [respondent's] . Division of Purchasing on or after October 1 this year" (T. 135) must a sworn statement accompany a bid.

4. The amended statute "effective on October 1 allows

   
   

   . . . submission of the public entity crime form document on a calendar year basis. So, it does not have to be submitted with each and every bid." (T. 135.) Petitioner does not anticipate bidding in response to any other of respondent's invitations to bid any time before October 1, 1990.

   
   

5. When asked, "Is it Jones' Floor Covering's intention after October 1st, to submit only one sworn statement a year to the Division of Purchasing," (T.

   95) Rocky Wayne Jones, a vice- president in petitioner's employ, answered, "Whatever we need to do, that's what we will do to be able to bid on State work. If that's what the law is, then we will do what the law says to do." T. 95.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction of petitions like the present one challenging putative administrative rules as an invalid exercise of delegated legislative authority. Section 120.56, Florida Statutes (1989).

   
   

7. Although mere "unwritten policy" cannot amount to an illicit rule, Department of Corrections v. McCain Sales of Florida, Inc., 400 So.2d 1301 (F1a 1st DCA 1981), here petitioner challenges a written specification in invitation to bid No. 69-360-240-F, claiming it amounts to a de facto rule, never lawfully adopted.

   
   

8. Preliminary to any decision on the merits, the question arises whether petitioner has standing to challenge a bid specification as an alleged) rule. Section 120.53(5)(b), Florida Statutes (1989) provides: "Failure to file a notice of protest or failure to file a formal written protest shall constitute a waiver of proceedings under this chapter."

   
   

9. Just as the disappointed bidder in Capeletti Bros. Inc. v. Department of Transportation, 499 So.2d 855 (Fla. 1st DCA 1986) (reh. den. 1987) failed to file a timely protest, so petitioner Jones Floor Covering, Inc., raised no question about the specification it now challenges as an unpromulgated rule, until after the bids were opened and the agency's intention to award to another bidder was announced.

   
   

10. Because no bidder had followed "[t]he proper procedure for contesting [a bid specification] . . by filing a bid solicitation protest within seventy- two hours of receipt of the project plans and specifications," Capeletti Bros. Inc. v. Department of Transportation, 499 So.2d 855, 857 (Fla. 1st DCA 1986) (reh. den. 1987), the court upheld an administrative determination that a published rule requiring a certain bid specification was invalid, while ruling that bidders were nevertheless bound by the specification.

    
    

11. The Capeletti court said: "A failure to file a timely protest constitutes a waiver of chapter 120 proceedings." Section 120.53(5), Florida Statutes (1985). 499 So.2d at 857. Although the point was not explicated, the clear import of the Capeletti decision was to deny the disappointed bidder in that case standing in a rule challenge predicated on any effect the specification had on the award of the particular contract in dispute.

12. A road contractor doing frequent business with the Department of Transportation would, of course, have been substantially affected by the rule challenged in Capeletti on account of other bids it would foreseeably make. This circumstance undoubtedly sufficed to "demonstrate standing by showing that a rule has a real and immediate effect." Professional Firefighters of Florida, Inc. v. Department of Health and Rehabilitative Services, 396 So.2d 1194, 1196 (Fla. 1st DCA 1981). In any event, failure to object to standing at the agency level precluded consideration of the issue on appeal. The Yachting Arcade, Inc.

    v. Riverwalk Condominium Ass'n, Inc., 500 So.2d 202 (Fla. 1st DCA 1986).

    
    

13. Here petitioner did not prove the requisite injury-in-fact of sufficient immediacy. Village Park Mobile Home Association v. State Department of Business Regulation, Division of Florida Land Sales, Condominiums and Mobile Homes, 506 So.2d 426 (Fla. 1st DCA 1987). Unlike the road contractor in Capeletti, petitioner foresees no future bids in which the challenged provision would prove determinative.

    
    

14. Only if petitioner failed to file a calendar year's sworn statement before bidding could any successor to the special condition under challenge "substantially affect" petitioner. Since any such possible effect would depend entirely on acts or omissions within petitioner's sole control, it cannot confer standing on petitioner to bring a rule challenge. Department of Offender Rehabilitation v. Jerry, 353 So.2d 1230 (1st DCA) cert. den. 359 So.2d 1215 (Fla. 1978). See Boca Raton Mausoleum, Inc. v. State of Florida, Department of Banking and Finance, 511 So.2d 1060 (Fla. 1st DCA 1987). Chances are, the record showed, the absence of a properly executed sworn statement accompanying a bid will never again adversely affect petitioner's eligibility to contract with respondent.

It is, accordingly, ORDERED:

The petition for administrative determination of the validity of unpromulgated rule is dismissed.

DONE and ENTERED this 27th day of September, 1990, in Tallahassee, Florida.

ROBERT T. BENTON, II

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 27th day of September, 1990.

APPENDIX TO RECOMMENDED ORDER CASE NO. 90-5224RU

Petitioner's proposed findings of fact Nos. 1 through 5, 7, 9, 12, 16, 17 through 26, 27 (except for the date) and 31 through 38 are immaterial to the rule challenge.

Petitioner's proposed findings of fact Nos. 6, 8, 10, 13, 14, 28 and 29 have been adopted, in substance, insofar as material.

With respect to petitioner's proposed findings of facts No. 11, the form was signed but not completed.

With respect to petitioner's proposed finding of fact No. 15, Rule 13A- 1.008(2), Florida Administrative Code requires that invitations to bid on term contracts include reform.

With respect to petitioner's proposed finding of fact No. 30, rejection does not itself render a bid unresponsive.

Respondent's proposed findings of fact have been addressed in substance, insofar as material.

COPIES FURNISHED:

Bruce A. Leinback, Esquire Cummings, Lawrence & Bezina, P.A. 1004 DeSoto Park Drive Tallahassee, FL 32302-0589

Susan B. Kirkland, Esquire and Jim Bennett, Esquire

Office of the General Counsel Department of General Services Koger Executive Center

Suite 309, Knight Building 2737 Centerview Drive

Tallahassee, FL 32399-0950

Ronald W. Thomas, Executive Director Department of General Services

Knight Building, Koger Executive Center 2737 Centerview Drive

Tallahassee, FL 32399-0950

Docket for Case No: 90-005224RU

Orders for Case No: 90-005224RU