STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SYSTEMS, CONTROLS AND ) SERVICES, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 92-3385BID

) ST. JOHNS WATER RIVER ) MANAGEMENT DISTRICT, )

)

Respondent. )

)

RECOMMENDED ORDER OF DISMISSAL

This cause came before the undersigned on respondent's motion to dismiss petitioner's formal written protest. As a ground, respondent contends petitioner lacks standing to protest the agency's decision to reject all bids filed in response to Invitation For Bid (IFB) 91G190. A memorandum in opposition to the motion has been filed by petitioner.

The facts in this matter are not in dispute. On an undisclosed date, respondent invited prospective bidders to file responses to IFB 91G190, which called for the successful bidder to perform "HVAC Renovations" on respondent's administration building. Bid proposals were filed by Bill Williams Air Conditioning and Heating, Inc. (Bill Williams) and at least one other vendor. Petitioner concedes it did not file a bid proposal but rather was listed as one of the subcontractors in both the proposal of Bill Williams and the other vendor. On or about May 6, 1992, respondent issued its notice of intention to reject all bids. Thereafter, petitioner filed a formal written protest contending that the agency erred by not awarding the contract to Bill Williams. Respondent's motion to dismiss is directed at this filing.

A party has standing to protest an agency's rejection of all bids only if that party has a substantial interest to be determined by the agency.

Westinghouse Electric Corporation v. Jacksonville Transportation Authority, 491 So.2d 1238, 1240 (Fla. 1st DCA 1986); Subsection 120.53(5)(b), Florida Statutes (1991). Absent extraordinary circumstances, a non-bidder does not have standing to challenge the agency's action. Westinghouse at 1241. Cf. Rubber Millers, Inc. v. United States, 596 F.Supp. 210 (D.C.D.C. 1984)(non-bidding subcontractor lacks standing under federal zone of interest analysis to challenge bid solicitation).

Petitioner can, of course, allege some degree of economic injury occasioned by the rejection of the bids in which it is listed as a subcontractor. However, it is clear that the interest which it seeks to vindicate is not within the zone of interest protected or regulated by the controlling statutes. This is because the relevant statutes are generally designed to protect the interests of persons having the authority to enter into contracts with governmental entities to provide materials and services pursuant to the specifications of the IFB. Petitioner does not fall within this class of protected persons. Even so, under

the rationale of Westinghouse, a non-bidder may still have standing to file a bid protest if exceptional circumstances are shown to be present. Without such a showing, a non-bidder's interests would not rise to the level necessary to be considered substantial and thus convey standing on that person. In this case, petitioner has merely alleged that it was a listed subcontractor in the bid document who would provide "a portion of the work" on the project. This allegation can hardly be considered to constitute the required extraordinary circumstances necessary to convey standing. Finally, it should be noted that if this result were not reached, virtually any non-bidding person who expected to provide a material or service to a prospective bidder, including those not listed as subcontractors, would have standing to participate fully as a party in cases such as this. Such a result would be inconsistent with the intent of the law and would serve to unfairly impede an agency's right to conduct an orderly, expedited bidding process. This being so, the motion to dismiss is hereby GRANTED. Since there appears to be no viable theory under which petitioner could demonstrate standing, the dismissal should be with prejudice. It is, therefore,

RECOMMENDED that respondent enter a final order dismissing with prejudice petitioner's formal written protest.

DONE AND ORDERED this 15th day of June, 1992, at Tallahassee, Leon County, Florida.

COPIES FURNISHED:

DONALD R. ALEXANDER, 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 15th day of June, 1992.

Wayne Flowers, Executive Director

St. Johns River Water Management District

P. O. Box 1429

Palatka, Florida 32178-1429

John R. Stiefel, Jr., Esquire 2301 Independent Square

Jacksonville, Florida 32202-5059

John W. Williams, Esquire

P. O. Box 1429

Palatka, Florida 32178-1429

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.

Docket for Case No: 92-003385BID

Orders for Case No: 92-003385BID