STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TOWNCENTRE VENTURE, )

a Florida partnership, )

)

Petitioner, )

)

vs. ) CASE NO. 93-2015BID

)

DEPARTMENT OF LABOR AND )

EMPLOYMENT SECURITY, )

)

Respondent. )

) BRYAN SIMPSON, JR., for )

P. V. ASSOCIATES, )

)

Petitioner, )

)

vs. ) CASE NO. 93-2016BID

)

DEPARTMENT OF LABOR AND )

EMPLOYMENT SECURITY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William F. Quattlebaum, held a formal hearing in the above-styled cases on April 22, 1993 in Tallahassee, Florida.

APPEARANCES

For Petitioner Thomas M. Jenks, Esquire Towncentre Venture: Pappas and Metcalf, P.A.

1 Independent Drive, Suite 3301 Jacksonville, Florida 32202

For Petitioner Nathan D. Goldman, Esquire Bryan Simpson, Jr., for Marcia Maria Morales, Esquire

P. V. Associates: 200 Laura Street

Post Office Box 240 Jacksonville, Florida 33202

For Respondent: Edward Dion, Esquire Assistant General Counsel Suite 307, Hartman Building

2012 Capital Circle South East Tallahassee, Florida 32399-2189

STATEMENT OF THE ISSUE

The issue in this case is whether, in making an award of a lease for office space, the Respondent acted according to the requirements of law.

PRELIMINARY STATEMENT

The Department of Labor and Employment Security, in February, 1993, issued a request for proposals seeking to lease in excess of 18,000 square feet of office space in Jacksonville, Florida.

After opening the proposals received in response to the request, the Department determined that Towncentre Venture's proposal was non-responsive and was not evaluated. The proposal submitted by Bryan Simpson, Jr., for P. V. Associates was found to be responsive and was evaluated. The Department of Labor and Employment Security evaluation committee eventually recommended that the proposal submitted by a third party, not participating in this proceeding, receive the award.

The Petitioners in these cases timely protested the Department's proposed action and requested formal hearing. The requests for hearing was forwarded to the Division of Administrative Hearings which conducted the proceeding.

At hearing, Towncentre presented the testimony of three witnesses. P. V. Associates presented the testimony of four witnesses. The Department presented no testimony. Joint exhibits numbered 1-16 were admitted. The prehearing stipulation filed by the parties was admitted as a Hearing Officer exhibit.

A transcript of the hearing was filed. All parties filed proposed recommended orders which were considered in the preparation of this Recommended Order. The proposed findings of fact are ruled upon either directly or indirectly as reflected in this Recommended Order, and in the Appendix which is attached and hereby made a part of this Recommended Order.

FINDINGS OF FACT

1. In February, 1993, the Department of Labor and Employment Security ("Department") issued a Request for Proposal and Bid Submittal No. 540:0969 ("RFP") seeking to lease approximately 18,684 square feet of office space in Jacksonville, Florida, for a period of six years.

   
   

2. The space was to house the Office of Disability Determinations ("ODD"), which processes disability claims and determines whether claimants are eligible for Social Security and Supplemental Income benefits. The office has minimal contact with the general public.

   
   

3. The RFP provided that all bids were subject to conditions stated within the RFP. Bids not in compliance with RFP conditions were subject to rejection.

   
   

4. RFP Article D, General Provisions, Paragraph 8 provides as follows:

   
   

   The Department reserves the right to reject any and all bid proposals for reasons which shall include but not be limited to the agency's budgetary constraints; 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.

   
   

5. A pre-bid conference was conducted by the Department on February 16, 1993. Representatives from the vendors involved in this proceeding attended the conference.

   
   

6. Bids were opened on March 5, 1993. The Department received five responses, three of which were deemed to be responsive and which were evaluated. The remaining two responses were determined to be nonresponsive and were not evaluated.

   
   

7. On or about March 10, 1993, based on the evaluations, the Department proposed to award the bid to Koger Properties, Inc. On or about March 17, 1993, the Department notified the vendors of the intended award.

   
   

8. The Petitioners filed timely notices protesting the intended award.

   
   

   TOWNCENTRE PROPOSAL

   
   

9. Paragraph 13 sets forth conditions to which a bidder must agree in order to be awarded a bid. Subsection "a" of the paragraph states, "[i]f successful, bidder agrees to enter into a lease agreement on the Department of General Services Standard Lease Agreement Form BCM 4054 (Attachment F - Do not complete)."

   
   

10. The copy of the Department of General Services Standard Lease Agreement Form which was included in the RFP was a poorly reproduced copy. Article III of the Lease Agreement Form provides as follows:

    
    

    III HEATING, AIR CONDITIONING AND JANITOR SERVICES

    
    

    1.a. The Lessor agrees to furnish to the Lessee heating and air conditioning equipment and maint(illegible) in satisfactory operating condition at all times for the leased premises during the term of the lease at the (illegible) of the Lessor.

    
    

    b. The Lessor agrees to maintain thermostats in the demised premises at 68 degrees Fahrenhe(illegible) the heating season and 78 degrees Fahrenheit during the cooling season; and certifies that boilers the(illegible) been calibrated to permit the most efficient operation.

    
    

    1. The Lessor agrees to furnish janitorial services and all necessary janitorial supplies for the leased (illegible) during the term of the lease at the expense of the Lessor.

    2. All services required above shall be provided during the Lessee's normal working hours, whic(illegible)marily from 7:30 a.m. to 5:30 p.m., Monday through Friday excluding state holidays.

       
       

11. Also attached to the RFP was a copy of an addendum to the lease, also poorly reproduced. The addendum provides as follows:

    
    

    Article III, Paragraph III Addendum for Full Service Lease

    The lessor and lessee mutually agree that the described prem(illegible) leased in this lease agreement shall be available to the department (lessee) for its exclusive use twenty four

    (24) (illegible) per day, seven (7) days per week during the lease term. T(illegible) space to be leased by the department will be fully occupied during normal working hours from 7:30 a.m. to 5:30 p.m., Mo(illegible) through Friday, excluding holidays, Saturdays and Sundays, (illegible) may be fully or partially occupied during all other periods (illegible) time as necessary and required at the full discretion of th(illegible) department. Accordingly, services to be provided by the le(illegible) under the terms of the lease agreement, including electrici(illegible) other utilities, will be provided during all hours of occup(illegible) at no additional cost to the department (lessee).

    
    

12. Although the copy of the lease agreement and addendum included in the RFP were poorly reproduced, it is clear that the addendum modifies the paragraph of the lease agreement related to provision of heating, air conditioning and janitorial services to require that HVAC services be provided throughout the premises during all hours of occupancy at no additional cost to the Department.

    
    

13. The proposal submitted by Towncentre included an "Attachment Z" which states as follows:

    
    

    The following represent exceptions and/or clarifications to the terms of the Request for Proposal and Bid Submittal Form ("RFP") for the referenced Lease. Except as noted herein, Bidder shall comply fully with the terms of the RFP..."

    
    

14. Item #7 of Attachment Z states as follows:

    
    

    The Building in which the space is offered is serviced by central heating, ventilating and air conditioning; therefore, no separate thermostats will be provided in the space

    other than in the computer room. However, the required temperature standards will be maintained and satisfied. The computer room HVAC shall be available 24 hours a day.

    Otherwise, after-hours HVAC is billed at $80 per hour.

    
    

15. Attachment Z also included additional exceptions to the provisions of the RFP.

    
    

16. Contrary to the requirements set forth in the addendum attached to the lease form included in the RFP, the Towncentre proposal included additional charges for after hours uses. The Department determined that the Towncentre proposal was nonresponsive and disqualified the proposal from further consideration.

    
    

17. Because the Towncentre proposal includes HVAC charges which are specifically prohibited under the terms of the RFP, the Towncentre proposal is nonresponsive to the RFP.

    
    

18. Towncentre asserts that other sections of the RFP indicate that, within the leased premises, only the computer room is required to be heated or cooled on a continuous basis. Vendors had an adequate opportunity to direct questions regarding the RFP to Department officials. There is no evidence that Towncentre sought clarification from the Department related to this matter prior to submitting the bid proposal.

    
    

19. In the notification to Towncentre that the bid had been determined to be nonresponsive to the RFP, the Department identified the other exceptions as additional reasons for the determination of nonresponsiveness. At hearing Towncentre introduced no evidence related to the remaining items included within Attachment Z.

    
    

    BRYAN SIMPSON JR. FOR P.V. ASSOCIATES

    
    

20. The Simpson bid was deemed to be responsive and was evaluated. The evaluations were performed by three Department employees, Dorea Sowinski, Albert Cherry, and Tom Mahar.

    
    

21. On March 9, 1993, the evaluators visited the physical locations of the three responsive bids. (Although the bid had been declared nonresponsive, they also visited the Towncentre site, apparently as a courtesy.) The Simpson space is located in downtown Jacksonville.

    
    

22. After completion of the site visits, the evaluators separately and independently completed their evaluation sheets. The evaluators awarded a total of 262 points to Koger Properties and 248 points to Simpson.

    
    

23. Page 7 of the RFP sets forth the evaluation criteria which were considered in awarding evaluation points. The RFP stated as follows:

    
    

    The successful bid will be the one determined to be the lowest and best. All bids will be evaluated based on the award factors enumerated below:

    
    

    1. Rental, using Present Value methodology for basic term of lease (See D, General Provisions Items 3 and 4) applying the present

       value discount rate of 5.6 per cent. (Weighing: 35)

    2. 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. (Weighing: 20)

    3. The effect of environmental factors, including the physical characteristics of the building and the area surrounding it on the efficient and economical conduct of the Departmental operations planned for the requested space. (Weighing: 20)

    4. Offers providing contiguous space within preferred boundaries. (Weighing 5)

    5. Frequency and availability of satisfactory public transportation within one block of the offered space. (Weighing 15)

    6. Availability of adequate dining facilities within one mile of the offered space. (Weighing: 2)

    7. Proximity of offered space to the clients served by the Department at this facility. (Weighing: 3)

    8. Proximity of offered space to other Department activities as well as other public services. (Weighing: 0)

    TOTAL POINTS: 100

    
    

24. Simpson asserts that the evaluators acted improperly in awarding points in categories 3, 5, 6 and 7.

    
    

25. Category 3 relates to the effect of environmental factors, including the physical characteristics of the building and the area surrounding it on the efficient and economical conduct of the Departmental operations planned for the requested space.

    
    

26. Although Simpson asserts that category 3 is vague and ambiguous, there was no objection to the category prior to the submission of the bid responses and the announcement of the proposed lease award.

    
    

27. Each evaluator could award up to 20 points in this category for a total of 60 available points. Koger was awarded 55 points. Simpson received 27 points. As to individual evaluators awards, Tom Mahar awarded Simpson five points, Albert Cherry awarded Simpson ten points, and Dorea Sowinski awarded Simpson 12 points.

    
    

28. Based on the written memo dated March 10, 1993, identifying the reasons for the recommended bid award, two of the three evaluators considered the Koger space to be located in a safer area than the Simpson facility, and, at least in part, based their point awards on this factor.

    
    

29. The two evaluators cite minimal anecdotal information in support of their opinions. The evaluators undertook no investigation related to safety issues and there are no facts to support their opinions. Their award of points for "environmental factors" is arbitrary.

30. Category 5 relates to the frequency and availability of public transportation within one block of the offered space. Each evaluator could award up to 15 points in this category for a total of 45 available points. Both Koger and Simpson received the maximum 45 points.

    
    

31. RFP Page Two, question 8 provides as follows: Public Transportation availability:

    BIDDER RESPONSE: (Check appropriate box) Taxi , Bus , Frequency of service closest bus stop .

    
    

32. Both Koger and Simpson indicate service by taxi and bus. The Koger proposal indicates a frequency of service as "8 BUSES" and the closest bus stop as "IN FRONT OF BUILDING ON WOODCOCK DRIVE." Simpson indicates a frequency of service as "15 minutes" and the closest bus stop as "front of building."

    
    

33. The Department asserts that the Koger level of transportation access, albeit less than that serving the Simpson site, is satisfactory and therefore entitled to an award of all points available. Simpson asserts that the greater availability of public transportation to the Simpson site should result, under the terms of the evaluation criteria, in Simpson receiving more points than the Koger site for this category.

    
    

34. The evaluation criteria clearly requires consideration of both the frequency and availability of satisfactory public transportation.

    
    

35. Simpson asserts that in considering the transportation category, the evaluators should have reviewed local public transportation schedules. Review of such schedules establishes that the Simpson site is served more frequently by public bus transportation than is the Koger site, and further establishes that the number of bus routes directly serving the Simpson property far exceeds the routes serving the Koger site. Simpson did not include the schedules in the RFP response.

    
    

36. The Simpson site is also located nearby the downtown public transportation transfer station at which point many, perhaps all, local bus routes connect. Simpson did not denote the location of the transfer station in the RFP response

    
    

37. While the evaluation committee is not required to consider the bus schedules in reviewing bid proposals, the evaluation committee failed to consider the substantially greater frequency and availability of public transportation to the Simpson site relative to the Koger site, as set forth in the respective RFPs. The Department's position is contrary to the specific criteria identified in the RFP. The award of equivalent points for transportation access to both Simpson and Koger is unsupported by fact or logic and is arbitrary.

    
    

38. Category 6 relates to the availability of adequate dining facilities within one mile of the offered space. Each evaluator could award up to two points in this category for a total of six available. Koger was awarded six points. Simpson received one point.

39. When the evaluators rated the adequacy of dining facilities, they considered only those dining facilities which were located within two blocks of the offered space. Such is contrary to the clear terms of the RFP. The Department offered no rationale for the decision to amend the RFP criteria after submission of the proposals.

    
    

40. The Simpson RFP response states only that there are adequate dining facilities within walking distance of the offered facility. The Koger response states that there are "three (3) sandwich shops within walking distance in the Koger center and other numerous restaurants within one (1) mile."

    
    

41. As to individual evaluators awards, Tom Mahar awarded Simpson one point, while both Albert Cherry and Dorea Sowinski awarded Simpson zero points. Mahar's award was based on his opinion, again based on alleged safety concerns, that employees would be hesitant to walk to nearby restaurants and that driving and parking presented a problem in the downtown location. Cherry voiced a similar opinion.

    
    

42. As to alleged safety concerns, Mahar and Cherry again based their opinions on minimal anecdotal information, supported by neither fact nor logic. Neither evaluator undertook any factual analysis of the safety issues relative to the proposed site. Their award of points for this category is arbitrary.

    
    

43. On the other hand, Sowinski did not see any restaurants close to the Simpson site during the site visit. In excess of 40 restaurants are located within one mile of the Simpson site. The restaurants provide a variety of dining options both as to expense and fare. Sowinski's failure to observe restaurants located across the street from the Simpson site is, although difficult to understand, apparently a simple mistake on her part.

    
    

44. Category 7 relates to the proximity of offered space to the clients served by the Department at this facility. Each evaluator could award up to three points in this category for a total of nine available. Simpson offered no evidence that the determination of points awarded for category 7 was inappropriate.

    
    

    CONCLUSIONS OF LAW

    
    

45. The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding. Sections 120.53(5) and 120.57(1), Florida Statutes.

    
    

46. The Petitioners have the burden of establishing, by a preponderance of the evidence, that the Department's actions were contrary to the requirements of law. Department of Transportation v. J. W. C. Company, Inc., 396 So.2d 778 (Fla. 1st DCA 1981).

    
    

47. An agency has wide discretion in soliciting and accepting bids and is accorded substantial deference in competitive bidding activities. The agency decision, when based on an honest exercise of discretion, should not be overturned even if it may appear erroneous and even if reasonable persons may disagree. Liberty County v. Baxter's Asphalt & Concrete, Inc., 421 So.2d 505, at 507 (Fla. 1982).

    
    

48. In an administrative challenge to an agency's decision to award a contract or to reject all bids, the scope of the inquiry is limited to whether the purpose of competitive bidding has been subverted. The hearing officer's

    sole responsibility is to ascertain whether the agency acted fraudulently, arbitrarily, illegally or dishonestly. Department of Transportation v. Groves- Watkins Constructors, 530 So.2d 912, at 914 (Fla. 1988).

    
    

49. As to the Towncentre proposal, the Department determined that the proposal was nonresponsive and disqualified the bid from further consideration. The evidence supports the Department's determination. The RFP required that utilities be provided on a full time basis at no additional cost to the Department. The Towncentre proposal clearly provides that HVAC after hours service, other than in a computer room, would be billed at an additional cost. The proposal is nonresponsive to the RFP.

    
    

50. As to the proposal submitted by Bryan Simpson for P. V. Associates, the evidence establishes that, as stated in the preceding findings of fact, the points awarded by the evaluators were arbitrary. An arbitrary act is one not supported by facts or logic, or despotic. Agrico Chemical Company v. Department of Environmental Regulation, 365 So.2d 759, at 763 (Fla. 1st DCA, 1979).

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED that the Department of Labor and Employment Security enter a Final Order DISMISSING the protest filed by Towncentre Venture, and WITHDRAWING the proposed award of lease contract based on the Request for Proposal and Bid Submittal No. 540:0969.

DONE and RECOMMENDED this 28th day of June, 1993, in Tallahassee, Florida.

WILLIAM F. QUATTLEBAUM

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 28th day of June, 1993.

APPENDIX TO CASES NO. 93-2015BID and 93-2106BID

The following constitute rulings on proposed findings of facts submitted by the parties.

Petitioner Towncentre Venture

Towncentre Venture's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows:

4. Rejected, second sentence is irrelevant.

5-7. Rejected, irrelevant. Taken as a whole, the RFP indicates that HVAC services are to be provided throughout the leased premises during all hours of occupancy at no additional cost to the Department. The evidence fails to establish that the vendors were confused about the terms of the RFP. There were apparently no related questions addressed to Department personnel during the

pre-bid conference or at any time subsequent to the conference and prior to the bid opening.

10. Rejected. Not supported by the document cited which does not identify the attachment by letter.

13. Rejected, irrelevant. The standard form lease included in the RFP was a sample document. None of the blank spaces were completed.

16. Rejected, irrelevant. The attendees at the conference were provided an opportunity to inquire as to all matters. There were apparently no questions asked related to the RFP's requirement that HVAC services be provided throughout the facility during all hours of occupancy at no additional cost to the Department.

17-18, 20-21. Rejected, irrelevant. The terms of the RFP are clear.

19. Rejected, irrelevant. The terms of the addendum for full service lease clearly indicate that such HVAC services were to be provided at no additional charge, not just in the computer room, but throughout the entire leased facility.

22. Rejected. The Towncentre bid was nonresponsive to the terms of the RFP. Petitioner Bryan Simpson, Jr., for P. V. Associates

P. V. Associates' proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows:

3. Rejected, not supported by the greater weight of the evidence which establishes that the RFP was issued seeking space for the Jacksonville Office of Disability Determinations.

4, 23, 24. Rejected, unnecessary.

Respondent Department of Labor and Employment Security

The Respondent's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows:

17. Rejected. The decision to award equivalent points for public transportation access fails to reflect the substantially greater access provided to the Simpson site and is arbitrary.

20-21. Rejected, not supported by greater weight of evidence which establishes no evidence that safety concerns were based on a reasonable evaluation of facts. There are no facts to support the conclusion that the Simpson location if less safe than the Koger site.

COPIES FURNISHED:

Shirley Gooding, Acting Secretary Suite 303, Hartman Building

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

Cecilia Renn

Chief Legal Counsel

Suite 307, Hartman Building 2012 Capital Circle, S.E. Tallahassee, Florida 32399-2152

Thomas M. Jenks, Esquire Pappas and Metcalf, P.A.

1 Independent Drive, Suite 3301 Jacksonville, Florida 32202

Nathan D. Goldman, Esquire Marcia Maria Morales, Esquire

200 Laura Street Post Office Box 240

Jacksonville, Florida 33202

Edward Dion, Esquire Assistant General Counsel Suite 307, Hartman Building 2012 Capital Circle S.E.

Tallahassee, Florida 32399-2189

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 ten 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.

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

AGENCY FINAL ORDER

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

STATE OF FLORIDA

DEPARTMENT OF LABOR & EMPLOYMENT SECURITY DIVISION OF ADMINISTRATIVE SERVICES

TOWNCENTRE VENTURE,

a Florida partnership,

Petitioner, CASE NO. 93-2015BID

vs.

DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY, DIVISION OF ADMINISTRATIVE SERVICES,

Respondent.

/ BRYAN SIMPSON, JR., for

1. ASSOCIATES,

   
   

   Petitioner, CASE NO. 93-2016BID

   
   

   vs.

   
   

   DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY, DIVISION OF ADMINISTRATIVE SERVICES,

   
   

   Respondent.

   /

   
   

   FINAL ORDER

   
   

   In February 1993 the Deartment of Labor and Employment security ("Department") issued a Request for Proposal and Bid Proposal Submittal Form (RFP), intending to lease about 18,000 square feet of office space in Jacksonville. (Lease No. 540:0969). Towncentre Venture ("Towncentre") and Bryan Simpson, Jr., for P. V. Associates ("Associates"), are disappointed competitive bidders who filed administrative protests, challenging the decision of the Department to award the lease to a third bidder, Koger Properties, Inc. ("Koger"). Towncentre and Associates sought administrative review before the Division of Administrative Hearings ("DOAH") under section 120.53(5), Florida Statutes (Supp. 1992). The DOAH hearing officer consolidated the two protests and after formal hearing issued a Recommended Order ("R.0."), attached to and incorporated in this order, that would have the Department dismiss the protest filed by Towncentre and withdraw the lease award to Koger. Towncentre filed exceptions to the Recommended Order. This cause comes to the Department for the purpose of issuing a Final Order. 120.57(1)(b)10, Fla. Stat. (Supp.1992).

   1. Standard of review.

      
      

      The scope of the Department's review of a recommended order from a hearing officer is limited.

      
      

      The agency may adopt the recommended order as the final order of the agency. The agency in its final order may reject or modify the conclusions of law and interpretation of administrative rules in the recommended order. The agency may not reject or modify the findings of fact, including findings of fact that form the basis for an agency statement, unless the agency first determines from a review of the complete record, and states with particularity in the order, that the findings of fact were not based upon competent substantial evidence or that the proceedings on which the findings were based did not comply with essential requirements of law.

      
      

      120.57(1)(b)10, Fla. Stat. (Supp. 1992). Stated alternatively, the Department is bound by the findings of the hearing officer unless the findings are unsupported by competent substantial evidence, Asphalt Pavers. Inc. v. State, Dept of Trans., 602 So.2d 558, 561 (Fla. 1st DCA 1992)(citation omitted), or fail to comply with essential requirements of law. Florida Dept of Corrections

      v. Bradley, 510 So.2d 1122, 1123 (Fla. 1st DCA 1987). Moreover, the Department may not reweigh the evidence, judge the credibility of witnesses, or interpret the evidence to fit a result contrary to that reached by the hearing officer. Heifetz v. Department of Business Regulation, Div. of Alcoholic Beverages & Tobacco, 475 So.2d 1277, 1281 (Fla. 1st 1985).

      
      

   2. Protest by Towncentre.

The Department determined that Towncentre's proposal was nonresponsive to the request for proposals ("RFP") because Towncentre "altered the package and amended the terms per . . . `Attachment Z." Joint Exh. 6. The hearing officer agreed, finding that Towncentre included charges specifically prohibited under the RFP, R.O. at 7, paras. 17 and 19, and concluding that Towncentre's bid was nonresponsive. Id. at 14, para. 49. Towncentre filed exceptions to the Recommended Order, which are considered in turn.

a. Conclusions and findings of hearing officer.

The RFP provides that each successful bidder shall execute the Department of General Services Standard Lease. The primary dispute between the Department and Towncentre concerns the Lease requirements for heating, air conditioning, and ventilation services (HVAC):"

"III Heating, Air Conditioning and Janitor Services

1.a The Lessor agrees to furnish to the Lessee heating and air conditioning equipment and maint(illegible) in satisfactory operating condition at all times for the leased premises

during the term of the lease at the (illegible) of the Lessor.

3. All services required above shall be provided during the Lessee's normal working hours, whic(illegible)marily from 7:30 a.m. to 5:30

p.m, Monday through Friday excluding state holidays.

R.0. at 5, para. 10 (quoting Lease). An Addendum to the Lease further defines the responsibilities of the parties:

"The lessor and lessee mutually agree that the described prem(illegible) leased in this lease agreement shall be available to the department (lessee) for its exclusive use twenty four (24)(illegible) per day, seven (7) days per week during the lease term. T(illegible) space to be leased by the department will be

fully occupied during normal working hours from 7:30 a.m. to 5:30 p.m., Mo(illegible) through Friday, excluding holidays, Saturdays and Sundays, (illegible) maybe fully or partially occupied during all other periods (illegible) time as necessary and required at

the full discretion of the(illegible) department. Accordingly, services to be provided by the le(illegible) under the terms of the lease agreement, including electrici(illegible)

other utilities, will be provided during all hours of occup(illegible) at no additional cost to the department (lessee)."

R.O. at 5-6, para. 11 (quoting Addendum).

Reading the two documents together, the hearing officer construed the Lease to mean:

Although the copy of the lease agreement and addendum included in the RFP were poorly produced, it is clear that the addendum modifies that paragraph of the lease agreement related to the provision of heating, air conditioning and janitorial services to require that HVAC services be provided throughout the premises during all hours of

occupancy at no additional cost to the Department.

R.0. at 6, para. 13.

The hearing officer also found that Towncentre attached an Addendum to its proposal, which provided that:

"Except as noted herein, Bidder shall comply fully with the terms of the RFP. .

The Building in which the space is offered is serviced by central heating, ventilating and air conditioning; therefore, no separate thermostats will be provided in the space other than in the computer room. However,

the required temperature standards will be maintained and satisfied. The computer room HVAC shall be available 24 hours a day.

Otherwise, after-hours HVAC is billed at $80 per hour."

R.O. at 6, para 14 (quoting Attachment Z)(emphasis deleted from original).

This addition to Towncentre's proposal, the hearing officer concluded, rendered it nonresponsive because it contained HVAC charges specifically prohibited under the RFP. R.0. at 7, para. 17. 1/

B. Rulings on exceptions by Towncentre.

Towncentre contends that the hearing officer erred on numerous grounds. First, Towncentre maintains that the hearing officer could only justify the Department's rejection of Towncentre's proposal if the hearing officer found that the discrepancy between the bid and the RFP was material and that Towncentre gained an economic advantage over the other bidders. As authority for its position Towncentre cites Liberty County v. Baxter's Asphalt & Concrete, Inc., 421 So.2d 505 (Fla. 1982), Intercontinental Properties Inc. v. State Dept of Health & Rehabilitative Servs., 606 So.2d 380 (Fla. 3d DCA 1992), and Harry Pepper & Assocs., Inc. v. City of Cape Coral, 352 So.2d 1190 (Fla. 2d DCA 1977).

None of the cases relied on by Towncentre compels an agency to waive bid discrepancies, whether minor, technical, or otherwise. In Baxter's Asphalt, the court let stand the county's award despite "a relatively minor irregularity in the technical bidding requirements" occasioned by the County's own inadvertence. Baxter's Asphalt, 421 So.2d at 507. And the district court in Intercontinental Properties ruled that there existed no sound reason for the hearing officer to override the judgment of HRS in awarding the contract to the lowest bidder, whose failure to attach proof of the agent's authority amounted to "technical deficiencies in form." Intercontinental Properties, 606 So.2d at 386.

The instant case is factually distinguishable, for both the Department and hearing officer regarded Towncentre's after-hours charges for HVAC as a substantial deviation. This conclusion is underscored by the testimony of John Wold, a Facilities Services Manager for the Department, who stated that it was "almost impossible to predict" the amount of overtime hours that employees assigned to the proposed lease site would work. Tr. at 27. Therefore, the Department faced undetermined, yet potentially substantial HVAC charges if Towncentre's proposal were accepted. 2/

Under the circumstances, Harry Pepper counsels against accepting Towncentre's position. The district court ruled that the city improperly allowed a bidder to modify its "substantially nonconforming bid" after the bids were opened. Harry Pepper, 352 So.2d at 1193. The hearing officer in the instant case was not obliged under Baxter's Asphalt, Intercontinental Properties, or Harry Pepper to overturn the decision of the Department.

Towncentre argues that the discrepancy caused by its including charges for after-hours HVAC is not material. If so, the authority to waive rests in the sound discretion of the Department. See Joint Exh. 1 (RFP) at 9 (Gen. Provision 8)("The Department reserves the right to . . . waive any minor informality or technicality in bids . . . ."). In addition, the proponent has the burden of proving the affirmative of an issue. Balino v. Department of Health &

Rehabilitative Servs., 348 So.2d 349, 350 (Fla. 1st DCA 1977). Here, Towncentre failed to show that after-hours HVAC charges are immaterial to the proposed lease.

Second, Towncentre argues that the hearing officer's conclusion that "it is clear that the addendum" modifies the lease provision relating to HVAC "to require that HVAC services be provided throughout the premises during all hours of occupancy at no additional cost to the Department" is "inconsistent" with the numerous instances of illegibility of the RFP. I reject this exception. True, the hearing officer described the Lease and Addendum as "poorly reproduced,"

1. at 4-5, paras. 5 and 11, and noted numerous instances of omitted letters or words, all from the right margins of those documents. However, Mr. Murray Lewis, who represented Towncentre and Associates at the pre-bid conference, effectively conceded the point by testifying that he had no question about the meaning of the missing text. Tr. at 59.

   
   

   Third, according to Towncentre the RFP contained no specific prohibition against a lessor's charging for after-hours HVAC service. Towncentre adds that the hearing officer's conclusion that it should have sought clarification of the RFP before submitting its bid is belied by the ambiguous nature of the RFP that assertedly prevented Towncentre from becoming aware that confusion existed and denied Towncentre the opportunity to direct questions to the Department during the pre-bid period. The record contains no competent substantial evidence to overturn the decision of the hearing officer. Indeed, the Department acted within the limits of its discretion. See, e.g. Joint Exh. 1 (RFP) at 8 (Gen. Provision 2)("All bids accepted by the State are subject to the State's terms and conditions and any and all additional terms and conditions submitted by bidders are rejected and shall have no force and effect")(emphasis added). Of the five bidders, only Towncentre submitted a proposal that included charges for after-hours HVAC.

   
   

   Fourth, in a pre-hearing stipulation the parties announced that the only issue of after-hours HVAC would be litigated at the formal hearing.

   Consequently, Towncentre argues, no other reasons existed to support the finding of the hearing officer that Towncentre's bid was non responsive. I agree and modify the Recommended Order accordingly.

   
   

   1. Protest by Associates.

      
      

      The hearing officer concluded that the evaluators arbitrarily awarded points in three categories--environment, public transportion, and dining facilities. R. 0. at 14, para. 50. I concur with the conclusion and underlying factual findings.

      
      

   2. Conclusion.

   
   

   After reviewing the complete record and for the reasons stated, it is hereby ORDERED that:

   
   

   1. As to Towncentre, the exceptions of Towncentre be rejected and the Recommended Order of the hearing officer, as modified, be adopted. Sub-section 120.57(1)(b)10, Fla. Stat.

      
      

   2. As to Association, the Recommended Order be adopted. Id.

   3. The Department withdraw its proposed award of lease to Koger in connection with Lease No. 540:0969. Further, the Department shall appoint a new evaluation team and reevaluate the proposals submitted by the responsive bidders, Koger and Associates. See Procacci v. State. Dep't of Health & Rehabilitative Servs., 603 So.2d 1299, 1301 (Fla. 1st DCA 1992) (remanding to agency and leaving choice of particular course of action to agency's sound discretion); Moore v. State, Dep't of Health & Rehabilitative Servs., 596 So.2d 759, 761 (Fla. 1st DCA 1992)(same).

This Final Order constitutes final agency action. Judicial review of this proceeding may be instituted by filing a notice of appeal in accordance with section 120.68, Florida Statutes, in the district court of appeal where the agency maintains headquarters or where a party resides. Such notice must be filed in the district court within Thirty (30) days of the date that this order is filed in the official records of the Department of Labor and Employment Security, as indicated in the clerk's certificate below, or further review of this action will be barred.

DONE AND ORDERED in Tallahassee, Florida, this 12th day of August, 1993.

JAMES E. BLOUNT, Director

Division of Administrative Services Florida Department of Labor and Employment Security

ENDNOTES

1/ The hearing officer also ruled that Towncentre was disqualified because it included other prohibited charges. R.O. at 6-7, paras. 15 and 19.

2/ I note that Garry Cohen testified on behalf of Towncentre that the revenue it received from its various tenants for after hours HVAC is "minimal," and that requests for tenants for after hours HVAC is "rare." Tr. at 91. The hearing officer was free to accord greater weight to the inferences raised by Mr. Wold's testimony, who testified based on the experience of the agency. Heifetz v.

Department of Business Regulation, Div. of Alcoholic Beverages & Tobacco, 475 So. 2d 1277, 1281 (Fla. 1st DCA 1985).

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing Final Order has been furnished by U.S. Mail to THOMAS M. JENKS, Esquire, 200 West Forsyth Street, Suite 1400, Jacksonville, Florida 32202-4327, NATHAN D. GOLDMAN, Esquire, and MARCIA M. MORALES, Esquire, 200 Laura Street, Post Office Box 240, Jacksonville, Florida 32201-0240, and by hand delivery to EDWARD A. DION, Assistant General Counsel, Department of Labor & Employment Security, 307 Hartman Building, 2012 Capital Circle SE, Tallahassee, Florida 32399, this 13th day of August, 1993.

Nelda J. Atkinson, Agency Clerk

cc: Clerk, Div. Admin. Hearings DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 Attachment

Docket for Case No: 93-002015BID

Orders for Case No: 93-002015BID