STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS
CLAYTON REALTY, )
)
Petitioner, )
)
and )
)
LYELL HINTZ, )
)
Intervenor, )
)
vs. ) CASE NO. 91-2122BID
) STATE OF FLORIDA, DEPARTMENT OF ) TRANSPORTATION, )
)
Respondent, )
)
and )
)
SOUTHEASTERN INVESTMENT )
PROPERTIES, INC., )
)
Intervenor. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Mary Clark, held a formal hearing in the above- styled case on April 18, 1991, in Tallahassee, Florida.
APPEARANCES
For Petitioner: Marvin L. Beaman, Jr., Esquire
605 North Wymore Road Winter Park, Florida 32789
For Lyell Hintz: Lyell Hintz, pro se
(at hearing)
H & L Distributors
517 Lakeshore Circle
Lake Mary, Florida 32746
Wings L. Benton, Esquire (post-hearing)
P.O. Box 5676
Tallahassee, Florida 32314-5676
For Respondent: Susan P. Stephens, Esquire
Department of Transportation 605 Suwannee Street
Tallahassee, Florida 32399-0450
For Southeastern Investment
Properties, Inc.: Kenneth M. Meer, Esquire
423 Country Club Drive Winter Park, Florida 32789
STATEMENT OF THE ISSUES
Petitioner and Lyell Hintz protest the Department's intent to award the bid for Lease No. 550-0209 to Southeastern Investment Properties, Inc.
Issues derived from the pleadings, the joint prehearing stipulation and the evidence and argument at hearing are:
Whether Petitioner has standing to protest the bid award;
Whether Petitioner and Lyell Hintz have waived the right to contest evaluation criteria;
If not, whether those criteria are valid; Whether the Respondent has properly applied the criteria to the bid proposals;
Whether Southeastern's bid was nonresponsive; Whether Southeastern changed its bid after opening;
Whether Petitioner's bid was defective for failure to include a waiver of existing lease; Whether the bid should be awarded to Lyell Hintz or Petitioner; and
Whether all bids should be rejected and the lease re-bid.
PRELIMINARY STATEMENT
Petitioner timely filed its notice of intent to protest on March 18, 1991, and its formal protest on March 28, 1991, with the Clerk of Agency Proceedings, Florida Department of Transportation (DOT).
The agency referred the protest to the Division of Administrative Hearings (DOAH) and the hearing was set as provided in Section 120.53(5), F.S.
The agency notified all bidders of the protest and notice of hearing.
On April 12, 1991, after a telephone hearing, Petitioner's motion for change of venue and continuance was denied. On April 16, 1991, a telephone hearing was conducted on Respondent's motion to strike or alternative motion in limine. The motion to strike was denied, and the motion in limine was granted to provide only that evidence that should have been addressed in a bid solicitation protest would be excluded. (See orders dated April 12, 1991 and April 16, 1991)
On April 17, 1991, Southeastern filed a petition to intervene which was granted, without objection, at the commencement of the formal hearing on April 18, 1991.
Also at the commencement of the hearing, Lyell Hintz presented his pro se petition to intervene. DOT and Southeastern objected that the petition was untimely and raised issues that should have been raised in a protest of the bid criteria.
The petition to intervene was granted, over objection. As provided in a prehearing order dated April 5, 1991, at the time of the notice of hearing, the 5-day deadline for intervention is not strictly applied in cases which must be heard in 15 days. Mr. Hintz' participation was limited to cross-examination and his own testimony. His petition is not directed solely to the published evaluation criteria, but also raises issues with regard to the application of those criteria.
At the hearing, Petitioner presented testimony of Gilmore Daniel, Jr., Nancy McClure Houston, Stephen J. Nunnery, Donna Lee Sovern, James Patrick Hamelin, Edward Fielding, Jr. and Lyell Hintz.
Respondent presented additional testimony of Nancy McClure Houston.
The intervenors limited their presentations to cross-examination and argument.
Six Joint Exhibits were identified and received, including the request for proposals, the responses by bidders and the evaluation form. Five exhibits were received on behalf of Petitioner, and one exhibit was received from Respondent.
A transcript was prepared and the parties submitted timely proposed recommended orders. The findings of fact proposed by each are addressed in the attached appendix.
FINDINGS OF FACT
The Bid Solicitation
On or about January 31, 1991, the Florida Department of Transportation (DOT) advertised its request for proposals (RFP) for a full service lease for its District Five, Operations and Planning Office, Public Transportation Office and Construction Office. The RFP is identified as lease #550:0209.
Specifications include net square footage of 13,640 + 3% (13,231 - 14,049), divided into 90% office and 10% storage space, to be available by July 1, 1991, or within 30 days of notice of bid award, whichever occurs last.
The space is to be available in a northern section of Orange County designated on a map attached to the RFP, in the Winter Park/Maitland/Orlando area surrounding the intersection of Lee Road and I-4.
The following evaluation criteria (award factors) are included in the
RFP:
The successful bid will be that one determined to be the lowest and best. All bids will be evaluated based on the award factors enumerated below:
Rental, using total present value methodology for basic term of lease...
(weighting: 15)
Conformance of and susceptibility of the design of the space offered to efficient layout and good utilization and to the specific requirements contained in the Invitation to Bid (not to exceed a weight of
10 award factors).
(weighting: 10)
Provision of the aggregate square footage on a single floor. Proposals will be considered, but fewer points given, which offer the aggregate square footage in not more than two floors.
(weighting: 25)
The effect of environmental factors, including the physical characteristics of the building and the area surrounding it, on the efficient and economical conduct of Departmental operation planned for the requested space.
(not to exceed a weight of 10 award factors)
(weighting: 10)
Offers providing 100 s.f. of street-level secured storage.
(weighting: 10)
* * *
[deleted criteria given 0 weight and not relevant]
Option period rental rate proposed is within projected budgetary restraints of the department.
(weighting: 15)
Accessibility to an I-4 Interchange.
(weighting: 15) total award factors = 100
(Joint Exhibit #1, p. 7 of 10)
Paragraph D.1., General Provisions, includes a notice that failure to file a protest within the time prescribed in Section 120.53(5), F.S., constitutes a waiver of proceedings under Chapter 120, F.S. The notice references an attachment which includes the text of Chapter 90-224, Laws of Florida, requiring posting of a bond at the time of formal written protest.
Paragraph D.6.A., General Provisions states:
Each proposal shall be signed by the owner(s), corporate officers, or legal representatives(s). The corporate, trade, or partnership title must be either stamped or typewritten beside the actual signature(s).
If the Bid Submittal is signed by an Agent,
written evidence from the owner of record of his/her authority must accompany the proposal. If the agent is to execute the lease, the authority must be supported by a properly executed Power of Attorney.
If the Bid Submittal is offered by anyone other than the owner or owner's agent, proof of the bidder's authority to offer the facility, i.e., copy of bidder's Option to Purchase, must accompany the proposal. This option must be valid through the validity date established for bids.
If a corporation foreign to the State of Florida is the owner of record, written evidence of authority to conduct business in Florida must accompany the Bid Submittal.
If there is an existing lease extending beyond the required availability date for all or any portion of the premises being offered to the agency a release of the applicable lease must accompany the Bid Submittal.
(Joint Exhibit #1, p. 8 of 10)
Paragraph D.8., General Provisions, provides the Department reserves the right to reject any and all bid proposals, waive any minor informality or technicality in bids, to accept that bid deemed to be the lowest and in the best interest of the state, and if necessary, to reinstate procedures for soliciting competitive proposals.
Paragraphs D.12 and 13, General Provisions, establish a March 4, 1991 bid opening and a February 11, 1991 preproposal conference, respectively.
On the RFP/Bid Proposal Submittal form, below the bidder's signature space, there is a list of required attachments and notice that failure to include such, if applicable, "...shall render the proposal nonresponsive and such proposal shall be rejected". (Joint Exhibit #1, p. 10 of 10)
The relevant attachments include a map with location of the facility, photograph, floor plan, authorization as agent for bidder, and release of existing leases.
The RFP/Bid Proposal Submittal Form was furnished to the DOT by the Department of General Services (DGS). As permitted, DOT made some modifications to the criteria to meet the specific needs of the agency.
No protests of the bid solicitation were filed by any party.
The Bid Responses
Four proposals were timely received at the bid opening deadline, March 4, 1991: Clayton's Realty (Petitioner) submitted two proposals, Lyell Hintz submitted one proposal, and Southeastern Investment Properties, Inc., submitted one proposal.
Clayton's bid for its building at 611 Wymore Road, Winter Park ("Clayton Bldg.") offers 13,984 square feet for $1,136,200.00 for the five-year
rental period and $1,398,400.00 for the option years. Some of DOT's offices are already in this building.
Clayton's bid for its building at 5600 Diplomat Circle, Orlando, ("Promenade Building") offers 14,049 square feet at $965,868.75 for the 5-year rental term, and $1,229,287.50 for the option period.
Both of Clayton's buildings offer space on two floors.
Lyell Hintz offers 14,049 square feet at 1241 S. Orlando Avenue, Maitland.
The five year rental cost is $895,623.75, and the option period rental is
$1,123,920.00. All of the space is offered on a single first floor.
Southeastern Investment Properties, Inc., offers 14,049 square feet in the Adlee Building at 5151 Adamson Street, Orlando, for $1,009,139.67 for the 5- year rental term and $1,288,012.32 for the option period.
Southeastern contends that it is offering 100 square feet of storage space on the first floor and the remainder of space on the second floor.
Committee Analysis of the Bids
An evaluation committee comprised of four DOT employees met on March 6, and March 12, 1991, to evaluate the bids. Their evaluation included a visit to each site with pre-established questions. The four employees were Nancy Houston, District Five District Director for Planning and Public Transportation; Donna Sovern, Ms. Houston's Administrative Assistant; Jim Hamelin, Resident Engineer in charge of construction in District Five; and Steven J. Nunnery, Office Manager for District Five Construction.
The committee had prior experience in the leasing process on only one occasion. In November 1990, this same lease #550:0209 was bid. Lyell Hintz and Southeastern were the bidders. All bids were rejected after it was discovered that Southeastern's bids included typewritten language added by the bidder and in conflict with standard requirements. No protest was filed from that agency decision.
In the November bid the committee simply utilized the criteria provided in the DGS packet. Later the Committee learned that criteria could be modified by the individual agency.
With this understanding, the Committee changed the criteria for the March 1991 bids to provide that space be offered on no more than two floors, rather than two buildings; that points would be awarded for offers of 100 square feet of street level storage space, rather than all space on the street level; and that accessibility to an I-4 Interchange would be an additional evaluation factor.
The committee felt these criteria appropriately addressed agency need to collocate programs and share facilities, to have ground floor storage for heavy samples and equipment, and to provide easy access by field staff and others using I-4 regularly.
The committee devised a methodology for awarding points to each bidder in each category described in paragraph 3, above. The methodology is stated in the minutes of the evaluation committee meeting dated March 6, 1991.
For item no. 1, the committee awarded 15 points (the highest) to the lowest bid. The percentage of difference between each bid and the lowest bid was multiplied by 15 to determine the point value.
Hintz received 15 points; Clayton (Promenade Building) received 14 points; Southeastern received 13 points; and Clayton (Clayton Building) received 12 points.
For item no 2, the committee stated it would take into account the design and other factors in the description of this item, including the parking requirement addressed in the invitation to bid.
Southeastern received the maximum, 10 points; Hintz received 8 points; and the two Clayton buildings received 6 points each.
As part of the November bid process, when the agency initially intended to make the award to Southeastern, Nancy Houston's husband, an architect in private practice, prepared without charge a layout of Southeastern's building to see if Southeastern could meet DOT's needs. At Clayton's and Southeastern's requests, that layout was provided to the bidders, except for Hintz. Since Hintz' building is basically a shell, and he assured DOT he would make the renovations they needed, Ms. Houston did not feel that he needed the floor plan. After the bids were rejected in November, the layout became a public record, available to anyone upon request.
However, Ms. Houston opined at hearing that they could not get a good layout that would work for the Hintz building. This contradicts Mr. Hintz' testimony that the suggested floor plan attached to the RFP could easily fit in his building. The floor plan attached to the RFP is not the same floor plan prepared by Ms. Houston's husband for the Southeastern building and the fact that Hintz' building is a shell capable of a vast variety of layouts impeaches Ms. Houston's opinion.
Item no. 3 requests aggregate square footage on a single floor, with fewer points for space on two floors. The committee methodology was to give 25 points for space on one floor and "reduction given accordingly" for two floors. (Joint Exhibit #6, attachment A, page 1)
Hintz and Southeastern were each granted 25 (maximum) points. Although various committee members testified that two floors should have warranted 1/2 the points, or 13, Clayton's buildings were awarded 16 points each.
Southeastern is not proposing to provide all space on one floor, as it is offering storage on the first floor and office space on the second floor. The committee considered this worthy of full points, as all of the office space is on one floor.
Item no. 4 is related to environmental factors such as aesthetics of the building and surrounding areas. The committee methodology states that aesthetics of the building and area would be considered along with "...the economical factor relating to the conduct of our everyday activities from and in each space proposed." (Joint Exhibit #6, Attachment A)
Southeastern was awarded 10 points (maximum); Clayton's Clayton Building and Promenade Building were awarded 6 and 8 points respectively; and Hintz was awarded 3 points.
Item no. 5 relates to provision of 100 square feet of storage on the street level. The committee methodology provides that full ten points will be awarded if this is met; if not, the score would be "adjusted accordingly". Each bid was awarded the full 10 points.
The committee members learned that Southeastern was willing to provide street level storage when they made their site visit and inquired. The space was not described in Southeastern's written proposal.
Item no. 11 relates to rental cost for the option period. The methodology adopted by the committee for this item is the same as for item no.
Hintz, the lowest bidder for the option term, received 15 points; Clayton's Promenade Building received 14 points; Southeastern received 13 points; and the Clayton Building received 12 points.
Item no. 12, accessibility to an I-4 Interchange, is worth 15 points maximum. For its methodology the committee devised a formula of granting the closest building a full 15 points. The I-4/Lee Road interchange was selected as the reference hub. The Clayton Building, .2 miles from the interchange, was given 15 points. Southeastern's building .6 miles away, three times as far, was given 1/3 value, 5 points; the Promenade Building, .4 miles away, or twice as far, was given 1/2 full value, or 7.5, rounded to 8 points; and Hintz' building,
2 miles away, or 10 times as far, was given 1.5 points, rounded to 2.
The total values thus awarded by the committee were:
86 points to Southeastern;
78 points to Hintz;
77 points to Clayton (Clayton Bldg.); and
76 points to Clayton (Promenade Bldg.).
The committee, after meeting on March 6th and making its awards, decided to meet again on March 12th, after obtaining more information on phone service, zoning regulations, crime, and bidder's previous experience in renovations. Although some additional information was obtained and the committee did meet again, it determined that the additional information (not clearly related to any of the seven criteria above) did not warrant changing any of the scores.
The committee recommended award of the lease to Southeastern.
Southeastern's Bid Allegedly Defective
Southeastern's bid is signed by Gilmore E. Daniel, Vice President of Southeastern Investment Properties, Inc., as agent for the owner, Cynwyd Investments, a partnership which operates under about 150 different partnerships. The building in issue is owned by an entity designated "Adlee Building, Cynwyd Investments General Partnership".
Attached to Southeastern's bid is a letter on Cynwyd Investments letterhead, dated February 7, 1991, addressed to Mr. Gil Daniel, re: Adlee Building, 5151 Adamson Street, Orlando, Florida, stating:
As leasing and managing agent for the above captioned property, you are hereby authorized to negotiate on our behalf with the State of Florida in order to procure the Department of Transportation as a tenant in our building.
(Joint Exhibit #5) The letter is signed by Stephen Cravitz, CSM.
Although the language of the letter is inartful (the agent was not "negotiating" a lease), the intent is plain on its face that the agent procure a lease. This is sufficient to convey authority for Gil Daniel to act on behalf of the owner. The requirement of the RFP, paragraph 6.A. is met. (see paragraph 5, above)
There are several tenants currently occupying space proposed to be leased to DOT under lease no. 550:0209. There are three "agreements" attached to Southeastern's bid proposal for three tenants. Each agreement provides the tenant will move by April 15, 1991 "...contingent upon the landlord being the successful bidder for the State of Florida Department of Transportation lease no. 550:0209, and having an executed lease with the State." (Joint Exhibit #5)
The tenants have not moved, but neither has the contingency been satisfied; and when or if it is, the tenants will move.
These agreements are sufficient "release" to meet the requirements of RFP paragraph 6.A.
The remaining tenant does not have a lease.
Clayton's Bid Allegedly Defective
Clayton's bids did not include any releases from tenants. There is a tenant currently in part of the space offered in the Clayton Building. There is also a lease agreement dated August 28, 1989, between the Claytons and Canam Steel Corporation describing a lease term of three years and termination date of September 14, 1992.
Edward Fielding, Jr. is Director of Operations in the Leasing Department for Charles and Malcolm Clayton. He is well aware of the requirements for state leasing as he and the Claytons have been involved for several years in leasing space to state agencies.
Canam Steel Corporation provided a letter in April 26, 1990, stating that it is closing its Orlando operation and requesting that its lease be terminated. It still occupies the space, but Edward Fielding is assured that it wishes to leave, and will do so immediately upon approval by Clayton. The lease and release was not included with the bid packet, as Fielding properly determined that it was no longer binding on the landlord.
The Clayton Building bid does not violate the requirement of RFP, Paragraph
6.A.
F. Alleged Bias of the Committee in Favor of Southeastern and
Improper Award of Points
Hintz and Clayton contend that the bid process was thoroughly tainted with a bias in favor of an award to Southeastern. Clayton did not respond to the November bid; Hintz did, and did not protest the earlier process, although he apparently brought to DOT's attention the language added to Southeastern's bid response that led to the rejection of all bids and reinitiation of the process.
The committee changed its evaluation criteria when it learned that DGS's form criteria are not binding on the agency. The committee's alterations and addition of the I-4 accessibility requirement were intended to better meet the specific needs of the programs that would be using the space.
The changes did not specifically benefit Southeastern; it was neither the closest nor next closest building to the I-4 interchange.
For those criteria which could be objectively quantified, such as rental rate and proximity to I-4, the committee attempted in good faith to devise formulae. That the point spread for the I-4 criteria was substantially wider than for rental rates does not invalidate those formulae.
For those criteria requiring a subjective analysis, the conformance/design and environmental factors, Petitioner and Hintz failed to prove the committee's point awards were patently wrong or fraudulent.
One committee member, James Hamelin, admitted that Clayton should have received 13, rather than 16 points for providing space on more than one floor, but that error, if it indeed was an error, inured to the benefit of Petitioner and made no impact on Hintz, the next highest scorer.
None of the floor plans presented by the bidders with their proposals are attached to the exhibits received in evidence, and those floor plans are not part of the record in this proceeding.
One committee member, Donna Sovern, admitted that all of the square footage proposed by Southeastern was initially on the second floor. When the site visit was made and the committee discussed the space, Southeastern offered 100 square feet of storage on the first floor. (Transcript, pp 200-201)
Because of this, Southeastern was awarded the full 10 points for Item No.
5, requiring 100 square feet of street-level secured storage.
Allowing Southeastern to change its bid thus provided an advantage of 10 additional points.
Assuming that the change was appropriate, Southeastern should not have also received the full 25 points for Item No. 3, provision of aggregate square footage on a single floor, since the remainder of its space is on the second floor. The award of points in these two items by the committee is inconsistent and erroneous.
Page 4 of 10 of the RFP describes the space to be included in the 13,640 square feet to be leased. The description includes storage areas. (Joint Exhibit #1) The bidders were on notice that "aggregate" square footage includes storage space.
The total number of points awarded to Southeastern must be reduced by either 10 (the after-the-fact storage space on the first floor) or 9 (the difference between the full 25 points and 16, the points awarded to Clayton for space on two floors). This results in a total of either 76 or 77 points for Southeastern.
In either case, Hintz becomes the highest scorer, and Clayton and Southeastern are tied.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction in this proceeding pursuant to Sections 120.53(5), F.S. and 120.57(1), F.S.
Section 255.25(3)(a), F.S. requires state agencies entering into a lease as lessee for the use of 2,000 square feet or more of space to advertise and receive competitive bids and award the bid to the "lowest and best bidder".
Section 120.53(5)(a), F.S. provides the procedure for resolving protests arising from the contract bidding process. This procedure includes the necessity for a person affected adversely by the decision to file a notice of protest within 72 hours and a formal protest within 10 days.
These deadlines also apply to protests of bid criteria, and failure to timely file constitutes a waiver of the protest. Capeletti Brothers, Inc. v. Department of Transportation, 499 So.2d 855 (Fla. 1st DCA 1986). The RFP includes a notice of Section 120.53(5), F.S., even if it does not include the text of the law.
The RFP also includes the listing of criteria and weights to be ascribed to each. When Clayton and Hintz failed to protest those criteria and their weights within 72 hours and 10 days of receipt of the RFP, they waived the right to contest them in a later proceeding such as this.
They did not, however, waive the right to challenge the committee's methodology adopted subsequent to the RFP, and did not waive the right to challenge the application of that methodology to the RFP criteria and review of the bid proposals.
As the next highest scoring bidder, Hintz unquestionably has standing to challenge the proposed award to Southeastern. Preston Carroll Co., Inc. v. Florida Keys Aqueduct Authority, 400 So.2d 524 (Fla. 3rd DCA 1981).
Clayton also had standing as an "adversely affected" person pursuant to Section 120.53(5)(a), F.S. Even though Clayton's bids were ranked third and fourth, a mere 10 points out of 100 total separated the first ranked bid, Southeastern, from Clayton's lowest ranked bid, which bid was only 2 points behind Hintz'.
Moreover, Clayton challenged not just the rankings, admittedly having to leap-frog Hintz if Southeastern's bid were disqualified, but also challenged the process as so fraught with bias and impropriety as to require readvertisement and bids anew.
The burden on Petitioner in such a challenge is substantial. Public bodies enjoy wide discretion in soliciting and accepting bids for public contracts, and even when reasonable persons may disagree their decisions will
not be disturbed when based on an honest exercise of discretion. Baxter's Asphalt and Concrete, Inc. v. Department of Transportation, 475 So.2d 1284, 1287, (Fla. 1st DCA 1985), citing Liberty County v. Baxter's Asphalt and Concrete, 421 So.2d 505, 507 (Fla. 1982).
Equally well-established is the principle that competitive bidding statutes are enacted for the protection of the public. Public bodies may not arbitrarily or capriciously discriminate between bidders or make awards based on personal preference. Wood-Hopkins Contracting Co. v. Roger Au and Son, Inc., 354 So.2d
446 (Fla. 1st DCA 1978); Wester v. Belote, 103 Fla. 976, 138 So. 721 (Fla. 1931).
To avoid capricious discrimination, bidders are not permitted to change their bids after opening except to cure minor irregularities. Harry Pepper & Assoc., Inc. v. City of Cape Coral, 352 So.2d 1190 (Fla. 2nd DCA 1978).
Southeastern was permitted to change its bid after opening to provide for storage space on the ground level. Since this change was worth 10 points, it could not be considered a "minor irregularity". Assuming that the change was valid, or as argued by Southeastern and DOT, the change was a mere "clarification", the provision of storage space on one floor and office space on another effectively disqualifies the bidder from the full 25 points awarded for providing space on a single floor. Words in an instrument should be given their natural or most commonly understood meaning. Tropabest Foods v. State Department of General Services, 493 So.2d 50 (Fla. 1st DCA 1986). Nothing in the plain wording of the criteria nor within the RFP/Bid Proposal Submittal Form supports an interpretation that aggregate space is office space only or does not include storage space.
The award of maximum points in each of two contradictory categories is arbitrary and capricious.
Clayton and Hintz have failed to meet their burden of proof as to their remaining contentions. The Southeastern bid was not fatally defective for failing to include the owner or authorization for the agent. The bid also was not defective for failure to include adequate releases of existing leases.
The criteria were not changed to assure Southeastern's successful bid and, except for the peculiar excess of advantage awarded for bi-level space, a bias or propensity to favor Southeastern is not manifest in the record.
Adjustment of the scores of the bidders as addressed above results in the top rank being occupied by Hintz, with the other bidders scarcely lower. With the lowest proposals for rent and top rank in the agency's own criteria for the "best" bid, Hintz is entitled to the award of lease no. 550:0209.
Based on the foregoing, it is hereby, RECOMMENDED:
That the agency enter its Final Order awarding lease no. 550:0209 to Lyell Hintz.
DONE AND RECOMMENDED this 12th day of June, 1991, in Tallahassee, Leon County, Florida.
MARY CLARK
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 12th day of June, 1991.
APPENDIX TO RECOMMENDED ORDER
The following constitute specific rulings on the findings of fact proposed by the parties:
Petitioner's Proposed Findings
Adopted in paragraphs 1 and 7.
- 5. Adopted in paragraph 11.
Adopted in paragraph 20.
Adopted in paragraph 31.
Adopted in summary in paragraph 18.
Rejected as immaterial.
and 11. Adopted in part in paragraph 5, otherwise rejected as immaterial. Southeastern's name is typewritten.
Rejected as immaterial.
Adopted in part in paragraph 31, otherwise rejected as immaterial.
and 15. Adopted in part in paragraph 33, otherwise rejected as immaterial.
Adopted in paragraphs 17 and 18.
Rejected as immaterial and irrelevant.
Adopted in paragraph 19.
Rejected as immaterial.
Adopted in part in paragraphs 20 and 27, otherwise rejected as unnecessary.
Rejected as unnecessary.
Adopted in substance in paragraphs 21, 26 and 27.
Rejected as unnecessary.
Adopted in paragraph 37.
Adopted in part in paragraph 29, otherwise rejected as irrelevant as points were not awarded or subtracted for the additional factors.
Rejected as irrelevant.
Lyell Hintz' Proposed Findings
Adopted in paragraphs 1 and 2.
Adopted in paragraph 11.
Adopted in paragraphs 13, 15, 16 and 21.
Adopted in paragraph 3.
Adopted in paragraphs 17 and 18.
Adopted in paragraph 5.
Adopted in paragraph 8.
Rejected as unnecessary.
Adopted in paragraphs 31 and 32.
- 11. Rejected as immaterial and contrary to the weight of evidence. The letter attached to the bid was sufficient authority.
12. Rejected as contrary to the weight of evidence.
13. and 14. 15. | Adopted Adopted | in in | paragraph 25. paragraphs 3 and | 25. |
16. | Adopted | in | paragraph 38. | |
17. - 21. | Adopted | in | paragraphs 3 and | 22. |
22. Rejected as argument rather than finding of fact.
23. | Rejected as immaterial and unsupported by the evidence. | |
24. | Adopted in paragraph 3. | |
25. - | 34. | Adopted in summary in paragraphs 23, 14 and 16. |
35. and 36. Adopted in paragraph 38.
Adopted in paragraphs 3 and 24.
- 50. Rejected as immaterial. According to the evidence these factors did not change the committee's evaluation.
51. - 53. Rejected as immaterial and, as to the DGS requirement, unsupported by the record.
Respondent and Southeastern's Proposed Findings
Adopted in paragraph 1.
Adopted in paragraph 9.
Adopted in paragraph 11.
Adopted in paragraph 10.
Adopted in paragraph 17.
Adopted in paragraphs 18 and 19.
Adopted in paragraph 3.
Adopted in part in paragraph 3, otherwise unnecessary.
Adopted in paragraph 23.
Rejected as unnecessary.
Adopted in paragraph 25.
Adopted in paragraph 19.
Adopted in paragraph 27.
Adopted in paragraph 3.
Adopted in paragraph 28.
Adopted in paragraph 24.
Rejected as contrary to the evidence, specifically the RFP which unambiguously included all storage and office space in the "aggregate."
- 19. Rejected as irrelevant or unsupported by the record.
Adopted in paragraph 31.
Adopted in paragraph 33.
Adopted in part in paragraph 34, but the letter requesting its lease be terminated is sufficient release.
Adopted in part in paragraph 12.
Rejected as unnecessary.
COPIES FURNISHED:
Marvin L. Beaman, Jr., Esquire 605 North Wymore Road
Winter Park, FL 32789
Wings L. Benton, Esquire
P. O. Box 5676
Tallahassee, FL 32314-5676
Susan P. Stephens, Esquire Dept. of Transportation 605 Suwannee Street
Tallahassee, FL 32399-0450
Kenneth M. Meer, Esquire
423 Country Club Drive Winter Park, FL 32789
Ben G. Watts, Secretary
Attn: Eleanor F. Turner, M.S. #58 Dept. of Transportation
Haydon Burns Building 605 Suwannee Street
Tallahassee, FL 32399-0458
Thornton J. Williams, General Counsel Dept. of Transportation
562 Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0458
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.
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AGENCY FINAL ORDER
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STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION
CLAYTON PROPERTIES, INC.,
Petitioner,
and
LYELL HINTZ,
Intervenor
vs. CASE NO. 91-2122BID
STATE OF FLORIDA, DEPARTMENT TRANSPORTATION,
Respondent,
and
SOUTHEASTERN INVESTMENT PROPERTIES, INC.,
Intervenor.
/
FINAL ORDER
Pursuant to notice, this matter came on for hearing before Mary Clark, a duly designated Hearing Officer of the Division of Administrative Hearings on April l8, 1991, in Tallahassee, Florida. The parties to this matter are Petitioner, Clayton Realty (hereinafter CLAYTON), Respondent, Florida Department of Transportation (hereinafter DEPARTMENT). Intervenors are LYELL HINTZ (hereinafter HINTZ) on behalf of Petitioner, and SOUTHEASTERN INVESTMENT PROPERTIES, INC. (hereinafter SOUTHEASTERN) on behalf of Respondent. Appearances on behalf of the parties were as follows:
Petitioner: Marvin L. Beaman, Jr., Esquire
605 North Wymore Road Winter Park, FL 32789
Respondent: Susan P. Stephens, Esquire
Assistant General Counsel Department of Transportation Haydon Burns Building
605 Suwannee Street
Tallahassee, Florida 32399-0450
Intervenor: Kenneth M. Meer, Esquire Southeastern 423 Country Club Drive Investment Winter Park, FL 32789 Properties,
Inc.
Intervenor: Lyell Hintz, pro se Lyell Hintz (at hearing)
H & L Distributors
517 Lakeshore Circle Lake Mary, FL 32746
Wings L. Benton, Esquire (post-hearing)
P. O. Box 5676
Tallahassee, FL 32314-5676 BACKGROUND AND PRELIMINARY STATEMENT
On or about January 31, 1991, the Florida Department of Transportation (hereinafter DEPARTMENT), advertised its request for proposals (RFP) for a full service lease for its District Five Operations and Planning Office, Public Transportation Office and Construction Office. The RFP is identified as Lease #550:0209. Petitioner, Clayton Realty (hereinafter CLAYTON) timely filed its notice of intent to protest the award of Lease #550:0209 to Intervenor Southeastern Investment Properties, Inc. (hereinafter SOUTHEASTERN). A formal protest was filed by CLAYTON with the DEPARTMENT's Clerk of Agency Proceedings on March 28, 1991, subsequent to which the matter was referred to the Division of Administrative Hearings (DOAH) for assignment of a hearing officer. The hearing was set pursuant to the provisions of Section 120.53(5), Florida Statutes. Thereafter the DEPARTMENT notified all bidders of the protest and notice of hearing.
A telephone hearing was conducted on April 12, 1991 on CLAYTON's motion for change of venue and continuance. That motion was denied by order of the hearing officer dated April 12, 1991. A subsequent motion by the DEPARTMENT to strike or in the alternative motion in limine was heard by teleconference on April 16, 1991. By order entered the same date the hearing officer granted the DEPARTMENT's motion that matters properly the subject of a bid solicitation protest would be excluded.
SOUTHEASTERN filed its Petition to Intervene, without objection of either party on April 17, 1991. That motion was grated at the commencement of the formal hearing on April 18, 1991. Intervenor Lyell Hintz (hereinafter Hintz) presented his Petition to Intervene at the commencement of hearing on April 18, 1991. Both the DEPARTMENT and SOUTHEASTERN objected to HINTZ's intervention. However, the motion was granted over objection.
Petitioner presented testimony of the following witnesses at hearing: Gilmore Daniel, Jr.
Nancy McClure Houston Stephen J. Nunnery Donna Lee Sovern James Patrick Hamelin
Edward Fielding, Jr., and Lyell Hintz
The DEPARTMENT presented the testimony of Nancy McClure Houston.
SOUTHEASTERN limited its presentation to cross-examination and argument. HINTZ cross-examined the witnesses and was allowed to offer testimony on his own behalf.
Six Joint Exhibits were identified and received into evidence. Those exhibits received into evidence were as follows:
Joint Exhibit #1 - The DEPARTMENT's RFP.
Joint Exhibits ##2-5-The bidders' responses to the RFP Joint Exhibit #6 - The bid evaluation form prepared by the
DEPARTMENT's evaluation committee.
Five exhibits were received on behalf of CLAYTON and one exhibit was received from the DEPARTMENT. A transcript of the proceedings was prepared and filed and all parties and intervenors filed proposed recommended orders, however, the recommended order filed by SOUTHEASTERN basically adopted the proposed recommended order filed by the DEPARTMENT.
After consideration of the entire record in this matter, including the pleadings filed, the testimony offered at hearing, the exhibits received into evidence, and the recommended order of the hearing officer, this final order is entered pursuant to the provisions of section 120.59, Florida Statutes. As set out more fully below, the DEPARTMENT has concluded that CLAYTON as the third and fourth placed bidder, has no standing pursuant to sections 120.53(5) and 120.57(1), Florida Statutes, to bring this bid award protest. However, certain unsupported factual conclusions were also revealed upon a review of the record. Notwithstanding that the noted factual deficiencies need not be reached in order to resolve this matter given CLAYTON'S lack of standing, the DEPARTMENT notes those factual departures below in order to preserve a fair and accurate record of the substantive matters at issue here.
The Department of Transportation rejects portions of the hearing officer's recommended order where the Findings of Fact are unsupported by competent substantial evidence in the record and where the Conclusions of Law are contrary to the facts as found herein and to prevailing statutory and case law. Such departures from the recommended order will be specifically noted herein.
FINDINGS OF FACT
The findings of fact are based on a review of the record in its entirety.
References to the transcript will be noted herein as (Tr. p. , 1.
On or about January 31, 1991, the DEPARTMENT advertised its RFP for a full service lease for its District Five offices of Operations and Planning, Public Transportation, and Construction. The RFP is identified as lease #550:0209.
The specifications included net square footage of 13,640 +3% (13,231 - 14,049), divided into 90% office and 10% storage space, to be available by July 1, 1991, or within 30 days of notice of bid award, whichever occurred last. The space was required to available in a northern section of Orange County which was designated on a map attached to the RFP, in the Winter
Park/Maitland/Orlando area surrounding the intersection of Lee Road and Interstate 4.
The RFP included evaluation criteria (award factors) as follows:
The successful bid will be that one determined to be the lowest and best. All bids will be evaluated based on the award factors enumerated below:
Rental, using total present value methodology for basic term of lease ... (weighted: 15)
Conformance of and susceptibility of the design of the space offered to efficient layout and good utilization and to the specific requirements contained in the Invitation to Bid (not to exceed a weight of 10 award factors)
(weighted: 10)
Provision of the aggregate square footage on a single floor. Proposals will be considered, but fewer points given, which offer the aggregate square footage in not more than two floors. (weighted: 25)
The effect of environmental factor, including the physical characteristics of the building and area surrounding it, on the efficient and economical conduct of Departmental operation planned for the requested space. (not to exceed a weight of 10 award factors)
(weighted: 10)
Offers providing 100 s.f. of street-level secured storage. (weighted: 10)
[deleted criteria given 0 weight and not relevant]
Option period rental rate proposed is within projected budgetary restraints of the department.
(weighted: 15)
Accessibility to an I-4 Interchange. (weighted: 15) Total award factors= 100
Joint Exhibit #1, p. 7 of 10.
Paragraph D.1., General Provisions of the RFP includes a notice that failure to file a protest within the time prescribed in Section 120.53(5), Florida Statutes, constitutes a waiver of proceedings under Chapter 120, Florida Statutes. The notice also references an attachment which includes the text of Chapter 90-224, Laws of Florida requiring posting of a bond at the time of filing a formal written protest.
Paragraph D.6.A., General Provisions states:
Each proposal shall be signed by the owner(s), corporate officers, or legal representative(s) The corporate, trade, or partnership title must be either stamped or typewritten beside the actual signature(s)
If the Bid Submittal is signed by an Agent, written evidence from the owner of record of his/her authority must accompany the proposal. If the agent is to execute the lease, the authority must be supported by a properly executed Power of Attorney.
If the Bid Submittal is offered by anyone other than the owner or owner's agent, proof of the bidder's authority to offer the facility, i.e., copy of bidder's Option to Purchase, must accompany the proposal. This option must be valid through the validity date established for bids.
If a corporation foreign to the State of Florida is the owner of record, written evidence of authority to conduct business in Florida must accompany the Bid Submission.
If there is an existing lease extending beyond the required availability date for all or any portion of the premises being offered to the agency a release of the applicable lease must accompany the Bid Submittal.
Joint Exhibit #1, p. 8 of 10.
Paragraph D.8., General Provisions of the RFP, provides that the Department reserves the right to reject any and all bid proposals, waive any minor informality or technicality in bids, to accept that bid deemed to be the lowest and in the best interest of the state, and if necessary, to reinstate procedures for soliciting competitive proposals.
Paragraphs D.12 and 13, General Provisions of the RFP establish a March 4, 1991, bid opening and a February 11, 1991, preproposal conference, respectively. The Department expands this Finding of Fact to specifically note that only SOUTHEASTERN attended the preproposal conference. (Tr. p. 293, 1. 17; p. 71, 1. 7-9; p. 126, 1. 8-15; p. 257, 1. 11-12) This became significant as to the requirement for ground level secured storage and clarification of the term aggregate square footage as it pertained to the ground floor storage area. (Tr. p. 257, 1. 20-21)
On the RFP/Bid Proposal Submittal form, below the bidder's signature space, there is a list of required attachments and notice that failure to include such, if applicable, `"shall render the proposal nonresponsive and such proposal shall be rejected." Joint Exhibit #1, p. 10 of 10. The relevant attachments include a map with location of the facility, photograph, floor plan, authorization as agent for bidder, and release of existing leases.
This Finding of Fact is expanded to reflect that none of the Bid Proposals introduced at hearing contained attached floor plans. (See Finding of Fact No.
38) Although there are indications in the record that floor plans were submitted (Tr. p. 103, 1. 4-7; p. 200, 1. 22-23; p. 306, 1. 11-14), the record is devoid of any evidence as to what each of the floor plans submitted with the bid proposals did or did not reveal as to floor level, square footage per floor level, or proposed floor space configuration. The record is fraught with indicia that much of this information was supplied by each bidder during the on-site visits made after the bid opening by the selection committee. (Tr. p. 78, 1. 15-18; p. 79, 1. 22- 25, p. 80, 1. 1; p. 94, 1. 19-25; p. 102, 1.
9-13; p. 103, 1. 4-7; p. 114, 1. 1-23; p. 200, 1. 4-25, p. 201, 1. 1- 12;
p. 267, 1. 7-8; p. 278, 1. 4-9; p. 304, 1. 20-25, p. 305, 1. 1-9; p. 306,
1. 11-14, 1. 20-25; p. 307, 1. 1- 3; p. 317, 1. 14-25, p. 318, 1. 1-25, p.
319, 1. 1-6)
The RFP/Bid Proposal Submittal Form was furnished to the DEPARTMENT by the Department of General Services (hereinafter DGS). As permitted, the DEPARTMENT made some modifications to the criteria to meet the specific needs of the agency.
No protests of the bid solicitation were filed by any party. This finding of fact is expanded to note that no bid award protest was filed by HINTZ.
Four proposals were timely received at the bid opening deadline, March 4, 1991: CLAYTON submitted two proposals, HINTZ submitted one proposal, and SOUTHEASTERN submitted one proposal.
CLAYTON's bid for its building at 611 Wymore Road, Winter Park (hereinafter Clayton Bldg.), offered 13,984 square feet for One Million One Hundred Thirty-six Thousand Two Hundred Dollars ($1,136,200.00) for the five- year rental period and One Million Three Hundred Ninety-Eight Thousand Four Hundred Dollars ($1,398,400.00) for the option years. Some of the DEPARTMENT's offices are already in this building.
CLAYTON's bid for its building at 5600 Diplomat Circle, Orlando (hereinafter Promenade Building), offered 14,049 square feet at Nine Hundred Sixty-Five Thousand Eight Hundred Sixty-Eight Dollars and Seventy-Five Cents ($965,868.75) for the 5-year rental term, and One Million Two Hundred Twenty- Nine Thousand Two Hundred Eighty-Seven Dollars and Fifty Cents ($1,229, 287.50) for the option period.
Both of CLAYTON's buildings offered space on two floors.
HINTZ offered 14,049 square feet at 1241 South Orlando Avenue, Maitland. The five year rental cost is Eight Hundred Ninety-Five Thousand Six Hundred Twenty-Three Dollars and Seventy-Five Cents ($895,623.75) and the option period rental is One Million One Hundred Twenty-Three Thousand Nine Hundred Twenty Dollars ($1,123,920.00)
It is apparent from the record that the DEPARTMENT's bid evaluation committee scored the HINTZ proposal as being on one floor and the testimony at hearing revealed that the committee members considered that the space offered was on the ground floor. The DEPARTMENT recedes from the Recommended Order on this Finding of Fact to the extent that the hearing officer found that the HINTZ offering was in fact on a single first floor. At hearing it was adduced that HINTZ had in fact offered the DEPARTMENT space on either the first or second floor of his building during the on-site visit. (Tr. p. 114, 1. 1-23; p. 266,
14-15, p.267, 1.7-8 (question asked by HINTZ of witness Jim Hamelin, this was not direct sworn testimony, but should be considered as an in court admission against interest.))
It is also noteworthy that HINTZ completed Item No. 11 of the General Specifications and Requirements and initialed that item in the margin. Item No. 11 requires a bidder who offers multi-story buildings to meet Building Code minimum of 50 pounds per square foot live load. This item need only be completed if applicable. This documentary evidence at a minimum confirms that office space could be occupied on at least two levels in the HINTZ building.
Joint Exhibit #5, page 3 of 10. Therefore, the hearing officer's finding is not
based on competent substantial evidence and is changed to reflect only that the committee believed the HINTZ space offered to be on a single first floor and scored it as such.
SOUTHEASTERN offered 14,049 square feet in the Adlee Building at 5151 Adamson Street, Orlando, for One Million Nine Thousand One Hundred Thirty-Nine Dollars and Sixty-Seven Cents ($1,009,139.67) for the 5-year rental term and One Million Two Hundred Eighty-Eight Thousand Twelve Dollars and Thirty-Two Cents ($1,288,012.32) for the option period.
SOUTHEASTERN contends it is offering 100 square feet of secured storage space on the first floor and the remainder of space on the second floor. The hearing officer's findings of fact is corrected to denote the type of first floor storage offered by SOUTHEASTERN.
An evaluation committee comprised of four DEPARTMENT employees met on March 6 and again on March 12, 1991 to evaluate the bids. Their evaluation included a visit to each site with a list of standard pre-established questions. The four employees were Nancy Houston, District Five Director for Planning and Public Transportation; Donna Sovern, Ms. Houston's Administrative Assistant; Jim Hamelin, Resident Engineer in charge of Construction in District Five; and Steven J. Nunnery, Office Manager for District Five Construction.
The committee had prior experience in the leasing process on only one occasion. In November 1990, this same lease #550:0209 was bid. HINTZ and SOUTHEASTERN were the only bidders then. All bids were rejected after it was discovered that SOUTHEASTERN's bid included typewritten language added by the bidder which was in conflict with standard requirements. No protest was filed from that agency decision.
In the November bid the committee simply utilized the criteria provided in the DGS packet. Later the committee learned that the standard DGS criteria could be modified by the individual agency. With this understanding, the committee changed the criteria for the March 1991 bids to provide that space be offered on no more than two floors, rather than two buildings; that points would be awarded for offers of 100 square feet of street level storage space rather than all space on the street level; and that accessibility to an I-4 Interchange would be an additional evaluation factor.
The committee felt these criteria appropriately addressed the DEPARTMENT's need to collocate programs and share facilities, to have ground floor storage for heavy samples and equipment, and to provide easy access by field staff and others using I-4 regularly.
The committee devised a methodology for awarding points to each bidder in each category described in paragraph 3 above. The methodology is stated in the minutes of the evaluation committee meeting dated March 6, 1991.
For Item No. 1, the committee awarded 15 points (the highest number possible) to the lowest bid. The percentage of difference between each bid and the lowest bid was multiplied by 15 to determine the point value. HINTZ received 15 points; CLAYTON (Promenade Bldg.) received 14 points; SOUTHEASTERN received 13 points; and CLAYTON (Clayton Bldg.) received 12 points.
For item No. 2, the committee stated it would take into account the design and other factors in the description of this item, including the parking requirement addressed in the invitation to bid. SOUTHEASTERN received the
maximum, 10 points; HINTZ received 8 points; and the two CLAYTON buildings received 6 points each.
As part of the November bid process, when the agency initially intended to make the award to SOUTHEASTERN, Nancy Houston's husband, an architect in private practice, prepared without charge a layout of SOUTHEASTERN's building to see if SOUTHEASTERN could meet the DEPARTMENT's needs. At CLAYTON's and SOUTHEASTERN's requests, that layout was provided to the bidders, except for HINTZ. Since HINTZ's building is basically a shell, and he assured the DEPARTMENT that he would make the renovations they needed, Ms. Houston did not feel that he needed the floor plan. After the bids were rejected in November, the layout became a public record, available to anyone upon request.
However, Ms. Houston opined at hearing that they could not get a good layout that would work for the HINTZ building. The DEPARTMENT rejects the finding that Ms. Houston's opinion is impeached by the fact that HINTZ's building is a shell and by Mr. Hintz's testimony relative to the floor plan attached to the RFP as not being based on competent substantial evidence.
First, the hearing officer overlooked the language of the RFP which indicated the purpose of the attached floor plan. The floor plan included in the RFP was included in Attachment A titled "DEPARTMENT OF GENERAL SERVICES, DIVISION OF FACILITIES MANAGEMENT, BUREAU OF PROPERTY MANAGEMENT - STANDARD METHOD OF SPACE MEASUREMENT- Chapter 13M-2.003, FLORIDA ADMINISTRATIVE CODE." The
actual floor plan is preceded by a full page description of the Standard Method of Space Measurement. The first paragraph of that page describes its purpose "is to permit communication and computation on a clear and understandable basis. Another important purpose is to allow comparison of values on the basis of a generally agreed upon unit of measurement (net square footage). The last sentence of that page states: "The attached typical floor plan illustrates the application of this standard." Joint Exhibit #1, Attachment A, page 2.
Nowhere in the RFP is a bidder given to understand that the floor plan included in Attachment A is representative of the DEPARTMENT's space configuration needs. This is further bolstered by the testimony and documentary evidence (Petitioner's Exhibit #3) that the DEPARTMENT had a floor plan drawn up which more specifically reflected "the number of offices that [were] needed, the size of each of those offices, and ... the placement of those offices." This included location of supervisors "near what employees and so forth." (Tr. p.129, 1. 14-19) Steven Nunnery also testified that the HINTZ building was not susceptible of accommodating the DEPARTMENT's space configuration needs due to lack of possibility for windows and doors for many of the proposed offices. (Tr. p. 175, 1. 14-23) Mr. Hintz's direct testimony under oath is found on pages 296-297 and on page 299 of the transcript. Nowhere on those pages does Mr. Hintz state that "the suggested floor plan attached to the RFP could easily fit in his building.
In view of the testimony of Ms. Houston and Mr. Nunnery and the total lack of testimony on the part of Mr. Hintz, and the lack of relevancy of the included floor plan to evaluation of Item No. 2, the hearing officer's finding that Ms.
Houston's opinion is impeached is erroneous and unsupported by record evidence.
Item No. 3 requests aggregate square footage on a single floor, with fewer points for space on two floors. The committee methodology was to give 25 points for space on one floor and "reduction given accordingly" for two floors. Joint Exhibit #6, Attachment A, page 1.
HINTZ and SOUTHEASTERN were each granted 25 (maximum points. The DEPARTMENT rejects the hearing officer's finding that various committee members testified that two floors should have warranted 1/2 the points, or 13 despite the fact that CLAYTON's buildings were awarded 16 points each as not being based on competent substantial evidence.
The committee members testified that no formula was devised for that category and none was applied. (Tr. p. 102, 1. 14-18) Testimony by Jim Hamelin indicated that no mathematical formula was applied in that case and that the division of space on two floors in the CLAYTON buildings in this case was probably worth close to one-third of a reduction. (Tr. p. 255, 1. 4-6)
Southeastern is not proposing to provide all space on one floor, as it is offering storage on the first floor and office space on the second floor. The committee considered this worthy of full points in both categories as all of the office space is on one floor. This finding of fact is expanded to conclude that the specification for aggregate square footage to be located on a single floor is a separate specification from the request for 100 square feet of secured ground floor storage. (Tr. p. 100, 1. 16-23 (Houston's testimony); p. 177, 1. 8-11 (Nunnery's testimony); p. 201, 1. 8-25, p. 202, 1. 1-16
(Sovern's testimony); p. 256, 1. 14-25, p. 257, 1. 1-25, and p. 258, 1. 1-10 (Hamelin's testimony))
It is uncontroverted in the record that this matter as to the aggregate square footage was clarified at the preproposal conference for those who chose to attend (Tr. p. 257, 1. 20-21)
Item No. 4 is related to environmental factors such as aesthetics of the building and surrounding areas. The committee methodology states that aesthetics of the building and area would be considered along with "... the economical factor relating to the conduct of our everyday activities from and in each space proposed." Joint Exhibit #6, Attachment A.
SOUTHEASTERN was awarded 10 points (maximum); CLAYTON's Clayton Bldg. and Promenade Bldg. were awarded 6 and 8 points respectively; and HINTZ was awarded 3 points.
Item No. 5 relates to provision of 100 square feet of storage on the street level. The committee methodology provides that full ten points will be awarded if this is met; if not, the score would be "adjusted accordingly." Each bid was awarded the full 10 points.
The committee members confirmed that SOUTHEASTERN was willing to provide street level storage when they made their site visit and inquired. The secured ground floor storage was not described in SOUTHEASTERN's written proposal or in any of the other submitted bid proposals. (Tr. p. 306, 1. 11- 14; p. 270,
1. 16-25) This Finding of Fact has been expanded to accurately reflect uncontradicted record testimony that all bid submissions did not specify availability of ground floor secured storage and therefore that information could only have been confirmed only through the inquiries made during the on- site visits and was not discernable from the written bid proposals of any of the responding bidders.
26. Item No. 11 relates to rental cost for the option period. The methodology adopted by the committee for this item is the same as for Item No.
HINTZ, the lowest bidder for the option term, received 15 points; CLAYTON's
Promenade Bldg. received 14 points; SOUTHEASTERN received 13 points; and the Clayton Bldg. received 12 points.
Item No. 12, accessibility to an I-4 Interchange, is worth 15 points maximum. For the methodology the committee devised a formula of granting the closest building a full 15 points. The I-4/Lee Road interchange was selected as the reference hub. The Clayton Bldg., .2 miles from the interchange, was given
15 points. SOUTHEASTERN's building .6 miles away, three times as far, was given 1/3 value, 5 points; the Promenade Bldg., .4 miles away, or twice as far, was given 1/2 full value, or 7.5, rounded to 8 points; and HINTZ' building, 2 miles away, or 10 times as far, was given 1.5 points, rounded to 2.
The total values thus awarded by the committee were:
86 points to SOUTHEASTERN;
78 points to HINTZ;
77 points to CLAYTON (Clayton Bldg.); and
76 points to CLAYTON (Promenade Bldg.).
The committee, after meeting on March 6th and making its award of scores (This term is clarified from the term awards used by the hearing officer stated. There is no evidence in the record that the committee has ever made an award of this lease), decided to meet again on March 12th, after obtaining more information on phone service, zoning regulations, crime, and bidder's previous experience in renovations. Although some additional information was obtained and the committee did meet again, it determined that the additional information (not clearly related to any of the seven criteria above) did not warrant changing any of the scores.
The committee recommended award of the lease to SOUTHEASTERN.
SOUTHEASTERN's bid is signed by Gilmore E. Daniel, Vice President of Southeastern Investment Properties, Inc., as agent for
the owner, Cynwyd Investments, a partnership which operates under about 150 different partnerships. The building at issue is owned by an entity designated "Adlee Building, Cynwyd Investments General Partnership."
Attached to SOUTHEASTERN's bid is a letter on Cynwyd Investments letterhead, dated February 7, 1991, addressed to Mr. Gil Daniel, re: Adlee Building, 5151 Adamson Street, Orlando, Florida, stating:
As leasing and managing agent for the above captioned property, you are hereby authorized to negotiate on our behalf with the State of Florida in order to procure the Department of Transportation as a tenant in our building.
The letter is signed by Stephen Cravitz, CSM. Joint Exhibit #5.
Although the language of the letter is unartful (the agent was not "negotiating" a lease), the intent is plain on its face that the agent procure a lease. This is sufficient to convey authority for Gil Daniel to act on behalf of the owner. The requirement of the RFP, paragraph 6.A. is met. (See paragraph 5, above)
There are several tenants currently occupying space proposed to be leased to the DEPARTMENT under lease no 550:0209. There are three "agreements" attached to SOUTHEASTERN's bid proposal for three tenants. Each agreement provides the tenant will move by April 15, 1991, "... contingent upon the landlord being the successful bidder for the State of Florida Department of Transportation lease No. 550:0209, and having an executed lease with the State." Joint Exhibit #5.
The tenants have not moved, but neither has the contingency been satisfied; and when or if it is, the tenants will move. These agreements are sufficient "release" to meet the requirements of the RFP paragraph 6.A. The remaining tenant does not have a lease.
CLAYTON's bids did not include any releases from tenants. There is a tenant currently in part of the space offered in the Clayton Building. There is also a lease agreement dated August 28, 1989, between the Claytons and Canam Steel Corporation describing a lease term of three years and termination date of September 14, 1992.
Edward Fielding, Jr. is Director of Operations in the Leasing Department for Charles and Malcolm Clayton. He is well aware of the requirements for state leasing as he and the Claytons have been involved for several years in leasing space to state agencies. Canam Steel Corporation provided a letter on April 26, 1990, stating that it is closing its Orlando operation and requesting that its lease be terminated. It still occupies the space, but Edward Fielding is assured that it wishes to leave, and will do so immediately upon approval by CLAYTON. The lease and release was not included with the bid packet as Fielding properly determined that it was no longer binding on the landlord. The CLAYTON bid for the Clayton Bldg. does not violate the requirement of the RFP, Paragraph 6.A.
HINTZ and CLAYTON contend that the bid process was thoroughly tainted with a bias in favor of an award to SOUTHEASTERN. CLAYTON did not respond to the November bid; HINTZ did, and did not protest the earlier process, although he apparently brought to the DEPARTMENT's attention the language added to SOUTHEASTERN's bid response that led to the rejection of all bids and reinitiation of the process.
The committee changed its evaluation criteria when it learned that DGS's form criteria are not binding on the agency. The committee's alterations and addition of the I-4 accessibility requirement were intended to better meet the specific needs of the programs that would be using the space.
The changes did not specifically benefit SOUTHEASTERN; it was neither the closest nor next closest building to the I-4 interchange.
For those criteria which could be objectively quantified, such a rental rate and proximity to I-4, the committee attempted in good faith to devise formulae. That the point spread for the I-4 criteria was substantially wider that for rental rates does not invalidate those formulae. For those criteria requiring a subjective analysis, the conformance/design and environmental factors, CLAYTON and HINTZ have failed to prove the committee's point awards were patently wrong or fraudulent.
The DEPARTMENT rejects the hearing officer's finding that "One committee member, James Hamelin, admitted that Clayton should have received 13, rather
than 16 points for providing space on more that one floor. The full context of Mr. Hamelin's testimony on the subject is as follows:
Q How did you determine, though, whether it was one point less if it came in on two floors versus nine points? What factors did you use?
A I guess we applied our mathematical formula in that. It would have been cut in half. It would have been 13.
Q Did you apply a formula to that?
A In this particular case, we did not. It was probably worth close to one-third of a reduction.
Tr. p. 254, 1. 23-25; p. 255, 1. 1-6.
Coupled with the testimony of Steven Nunnery (Tr. p. 171, 1. 9-12), and Nancy Houston (Tr. p. 102, 1. 14-18), there is no substantial evidence by which to apply any specific formula to any bid considered to be offering aggregate space on two floors. It is apparent from the record that Mr. Hamelin merely speculated on a theoretical mathematical formula which could have been applied to the CLAYTON proposals. The hearing officer made no specific finding of error in scoring the points for Item No. 3 for the CLAYTON's bid. As the hearing officer correctly pointed out, if an error had occurred, it would have inured to the benefit of CLAYTON and would have had no impact on HINTZ.
None of the floor plans presented by the bidders with their proposals are attached to the exhibits received in evidence, and those floor plans are not part of the record in this proceeding. One committee member, Donna Sovern, admitted that all of the square footage proposed by SOUTHEASTERN was initially on the second floor. When the on-site visit was made and the committee asked SOUTHEASTERN about the space, the committee was able to confirm that the 100 square feet of ground floor secured storage was available. (Tr. p. 200, 1. 4-25, p. 201, 1. 1-7) Ms. Houston also testified that none of the bidders specifically referenced the requested storage space in their bids because no specific floor plans were submitted. That information was made available to the committee only when the available space was shown them during the on-site visits. (Tr. p.306, 1. 9-14)
SOUTHEASTERN and all other bidders were awarded the full 10 points for Item No. 5, requiring 100 square feet of street-level secured storage. The DEPARTMENT rejects the hearing officer's finding that SOUTHEASTERN was allowed to change its bid and was provided an advantage of 10 additional points as not being supported by competent substantial evidence in the record. There was no testimony that SOUTHEASTERN was permitted to alter any portion of their bid.
The record is also clear that although SOUTHEASTERN's bid was silent as to the specific space in which the ground floor secured storage would be made available, so too were all other bids. A finding of any point advantage for SOUTHEASTERN is not substantiated.
The record is rife with testimony that the aggregate square footage specified in Item No. 3 was a separate and distinct item from the secured street-level storage specified in Item No. 5. The hearing officer's factual conclusion that "the award of points in these two items by the committee is inconsistent and erroneous" is unsupported. The RFP does not indicate that bids which do not offer the ground floor storage would be rejected as non-responsive. This item could conceivably have been scored zero if no storage were available,
yet a multi-level bidder could have scored very high in other categories as to have been deemed the lowest and best bid.
While it is clear from Joint Exhibit #1 that the aggregate square footage did include storage space, it is also clear from that document that a separate specification item was for a different type of storage. That storage not only was required to be at street-level, it was also required to be secured storage.
Were SOUTHEASTERN's total number of awarded points to be reduced by the
10 awarded for Item No. 5, fairness would require that all other bids similarly be reduced for their identical failure to specify street level storage in their written submission. Such deduction would maintain all bidders in their current relative positions. The record supports a finding that SOUTHEASTERN offered the aggregate space requested on a single level. However, if some other scoring method were employed (and the record contains nothing to support what would in fact have constituted an appropriate method). The record does not demonstrate that SOUTHEASTERN'S nor HINTZ'S positions would have changed in relation to CLAYTON. However, the 9 points awarded to CLAYTON, opined by the hearing officer to be incorrect, has no factual basis in the record as appropriate for any space other than that offered by CLAYTON. The percentage of all SOUTHEASTERN'S offered space, including the secured storage, which is not located on the same floor with the office space is so minute that any mathematical ratio applied to SOUTHEASTERN'S bid could only result in a minor point reduction should Item No. 3 be reweighed for all bidders.
Further, the record contains direct testimony by Ms. Houston while under cross-examination by HINTZ and an in court admission by HINTZ that he in fact proposed both first floor or second floor space for the DEPARTMENT at the time of the on-site visit. That space offering would have to be definitive to accurately weight HINTZ on Item No. 3.
Pursuant to any of the above scenarios having a factual basis in the record, SOUTHEASTERN would remain the highest in points scored with HINTZ and CLAYTON scoring less.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has no jurisdiction over the subject matter of this proceeding pursuant to Sections 120.53(5) and 120.57(1), Florida Statutes.
Section 255.25(3) (a), Florida Statutes, requires state agencies entering into a lease as lessee for the use of 2,000 square feet or more of space to advertise and receive competitive bids and award the bid to the "lowest and best bidder."
Section 120.53(5) (a), Florida Statutes, provides the procedure for resolving protests arising from the contract bidding process. This procedure includes the necessity for a person affected adversely by the decision to file a notice of protest within 72 hours of posting of an intent to award and requires that a formal protest be filed within 10 days of that notice. Failure to do either of the above constitutes a waiver of the right to proceedings under Chapter 120. Section 120.53 (a, Florida Statutes; Xerox Corporation v. Florida Department of Professional Regulation, 489 So.2d 1230 (Fla. 1st DCA 1986)
These deadlines also apply to protests of a bid solicitation. Failure to timely file a protest of criteria for a bid solicitation also constitutes a waiver of the right to Chapter 120 proceedings. Capeletti Brothers, Inc. v.
Department of Transportation, 499 So.2d 855 (Fla. 1st DCA 1986). The RFP included a notice of the applicability of the requirements of Section 120.53(5), Florida Statutes, to a protest of the RFP.
The RFP included a list of the evaluation criteria and the corresponding weight to be ascribed to each. When CLAYTON and HINTZ failed to notice a protest of those criteria and their weights within 72 hours of receipt of the RFP, they waived the right to contest them in a later proceeding such as this.
The hearing officer's conclusion that "they" did not, however, waive the right to challenge the application of the methodology to the RFP criteria is incorrect and not supported by prevailing statutory and case law. HINTZ quite clearly waived his right to protest the bid award because he did not file a notice of protest or a formal written protest within the time frame required by statute. No action filed by another party can revive that right on behalf of HINTZ where it was already waived.
CLAYTON did not waive the right to challenge the award to SOUTHEASTERN because a proper notice, formal challenge, and bid protest bond were timely filed by CLAYTON. But further inquiry as to the standing of Petitioner CLAYTON to bring this action must initially be made and resolved.
Had HINTZ timely filed a bid protest, he clearly unquestionably would have had standing as the apparent second low bidder. Preston Carroll Co., Inc. v. Florida Keys Aqueduct Authority, 400 So. 2d 524 (Fla. 3d DCA 1981). However, the court in Preston determined that challengers other than the second low bidder have no standing to bring a protest action pursuant to Section 120.53(5) (b), Florida Statutes, unless they could establish that they had a "substantial interest" to be determined by the agency. In order to do that, it was incumbent upon CLAYTON to allege and prove at hearing that all bidders between him and the intended awardee (in this case HINTZ) were not responsive.
CLAYTON's formal protest filed March 28, 1991, with the DEPARTMENT's Clerk of Agency Proceedings primarily attempts to after the fact protest the RFP criteria for the Lease identified as No. 550:0209. In its petition CLAYTON attacks SOUTHEASTERN's bid proposal but makes no mention whatsoever of HINTZ's bid proposal. At hearing, counsel for CLAYTON indicated that he intended to try to show that HINTZ's bid was not responsive. (Tr. p. 92, 1. 3-8) He further made numerous allegations of fraud and collusion which were found not to have existed by the hearing officer. (See Finding of Fact 37) Had such a finding been made, a case could perhaps be made pursuant to Westinghouse Electric Corporation v.
Jacksonville Transportation Authority, 491 So.2d 1238, 1241 (Fla.. 1st DCA 1986), to support a finding that some circumstance existed to demonstrate that CLAYTON had standing to bring this action.
CLAYTON's failure to establish that he had a substantial interest to be determined by the agency, either by having the second low bidder deemed non- responsive or by proving a special circumstance such as fraudulent action of the part of the DEPARTMENT, must result in a finding that CLAYTON failed to establish standing to bring this action. Therefore, the Division of Administrative Hearings has no jurisdiction over the parties to this proceeding.
HINTZ's status in this action can be nothing more than a grant of Intervenor status to protect his position as the second low bidder. He is
limited to the issues raised by the original parties and if he intended to attack the award of the lease to SOUTHEASTERN, it was incumbent upon him to timely file a protest pursuant to Section 120.53(5), Florida Statutes. See Kirkland, Standing in Bid Protests, Fla. Bar J., July-Aug. 1988, at 43.
CLAYTON's lack of standing requires a dismissal of this bid protest. Preston Carroll Co. v. Florida Keys Aqueduct Authority, 400 So.2d 524, 525 (Fla. 3d DCA 1981) . HINTZ having previously waived all rights under Chapter 120 to protest either the RFP criteria or the intended award to SOUTHEASTERN has no remaining derivative interest in the action dismissed as to CLAYTON.
The DEPARTMENT adopts the hearing officer's conclusions that CLAYTON and HINTZ failed to meet their burden of proof as to their claims that the SOUTHEASTERN bid was fatally defective for failing to include the owner or authorization for the agent and that the SOUTHEASTERN bid was not defective for failing to include releases of certain existing leases.
The CLAYTON bids were similarly not defective for failure to include certain releases because no valid lease for the offered space remained in force.
Finally, although moot in view of CLAYTON's lack of standing to bring this action, the hearing officer's recommendations relating to a reweighing of the Item Nos. 3 or 5 criteria is contrary to prevailing case law. It is not the hearing officer's function to reweigh the award factors and award the bid to the protestor. This is the prerogative of the department. Dr. C.
J. Courtenay v. Department of Health and Rehabilitative Services, So.2d , (16 FLW D1511, June 6, 1991).
ORDER
WHEREFORE, based on the foregoing Findings of Fact, Conclusions of Law, and the record in its entirety, it is hereby ORDERED that the bid award protest filed by Clayton Realty is hereby DISMISSED and that Lease No.
550:0209 is awarded to Southeastern Investment Properties, Inc.
DONE AND ORDERED this 8th day of July, 1991.
BEN G. WATTS, P. E.
Secretary
Florida Department of Transportation Haydon Burns Building
605 Suwannee Street
Tallahassee, Florida 32399
NOTICE OF RIGHT TO APPEAL
THIS ORDER CONSTITUTES FINAL AGENCY ACTION AND MAY BE APPEALED BY PETITIONER PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND RULE 9.110, FLORIDA RULES OF APPELLATE PROCEDURE, BY FILING A NOTICE OF APPEAL CONFORMING TO THE REQUIREMENTS OF RULE 9.110(d), FLORIDA RULES OF APPELLATE PROCEDURE, BOTH WITH THE APPROPRIATE DISTRICT COURT OF APPEAL, ACCOMPANIED BY THE APPROPRIATE FILING FEE, AND WITH THE DEPARTMENT'S CLERK OF AGENCY PROCEEDINGS, HAYDON BURNS BUILDING, 605 SUWANNEE STREET, M. S. 58, TALLAHASSEE, FLORIDA 32399-0458, WITHIN THIRTY DAYS (30) DAYS OF RENDITION OF THIS ORDER.
Copies furnished to:
Mary Clark Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, FL 32399-1550
Marvin L. Beaman, Jr., Esquire 605 North Wymore Road
Winter Park, FL 32789
Wings L. Benton, Esquire
P. O. Box 5676 Tallahassee, FL 32314-5676
Susan P. Stephens, Esquire Department of Transportation 605 Suwannee Street, M.S. 58
Tallahassee, FL 32399-0458
Kenneth M. Meer, Esquire
423 Country Club Drive Winter Park, FL 32789
Ms. Nancy Houston
Florida Department of Transportation District Director for Planning
and Public Transportation, District V
611 Wymore Road, Suite 101 Winter Park, FL
| Issue Date | Proceedings |
|---|---|
| Jun. 12, 1991 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Jul. 08, 1991 | Agency Final Order | |
| Jun. 12, 1991 | Recommended Order | Lease bid award based on arbitrary and capricious application of agency's own criteria. Scores adjusted. Award recommended to intervenor. |
