STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

OHM REMEDIATION SERVICES )

CORPORATION, )

)

Petitioner, )

)

vs. ) CASE NO. 93-4776BID

)

FLORIDA DEPARTMENT OF )

TRANSPORTATION, )

)

Respondent, )

)

and )

)

WESTINGHOUSE REMEDIATION )

SERVICES, INC. )

)

Intervenor. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Claude B. Arrington, held a formal hearing in the above-styled case on September 7, 1993, in Tallahassee, Florida.

APPEARANCES

For Petitioner, George N. Meros, Jr., Esquire

OHM Remediation Michael E. Riley, Esquire Services Corporation: Rumberger, Kirk & Caldwell, P.A.

106 East College Avenue Suite 700

Post Office Box 10507 Tallahassee, Florida 32302

For Respondent Paul Sexton, Esquire Florida Department Florida Department of Transportation: Transportation

Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399-0458

For Intervenor Betty J. Steffens, Esquire Westinghouse Remediation H. Darrell White, Esquire Services, Inc.: McFarlain, Wiley, Cassedy &

Jones, P.A.

215 South Monroe Street Suite 600

Post Office Box 2174 Tallahassee, Florida 32316-2174

STATEMENT OF THE ISSUES

Whether the Florida Department of Transportation acted illegally, fraudulently, or dishonestly in awarding the subject Request for Proposals. The subissues are whether Westinghouse Remediation Services, Inc. made a material misrepresentation and, if so, whether that misrepresentation rendered its response to the Request for Proposals non-responsive.

PRELIMINARY STATEMENT

The Florida Department of Transportation (FDOT) issued the subject Request for Proposals (RFP) pertaining to the provision of environmental assessment and/or remediation services. The services were to be provided on an as needed basis throughout the state during the construction phase of transportation projects.

Westinghouse Remediation Services, Inc. (Westinghouse) and OHM Remediation Services Corporation (OHM) were among the entities submitting responses to the RFP. The three person evaluation committee appointed by FDOT evaluated the responses and recommended that the contract be awarded to Westinghouse.

Thereafter, OHM filed a timely protest to the award of the contract to Westinghouse, and the matter was referred to the Division of Administrative Hearings for formal proceedings. Westinghouse was granted leave to intervene. At the beginning of the formal hearing, OHM stipulated that the only issue in dispute and contained in its bid protest letter was the issue identified as Item Four, which pertained to an alleged misrepresentation by Westinghouse as to the status of an office in Miami. All other issues identified by the bid protest letter were withdrawn. OHM attempted to introduce evidence pertaining to an additional allegation (whether Westinghouse was properly authorized to do business in the State of Florida) that had not been raised prior to the formal hearing. Evidence as to that allegation was rejected as not being relevant to the issues that had been properly framed.

Westinghouse's response to the RFP refers to and describes certain facilities on North 57th Street, North Miami, Florida. The parties stipulated that the correct street address for those facilities is on North 57th Avenue, North Miami, Florida. No challenge is made to Westinghouse's response because of that typographical error.

At the formal hearing, OHM presented the testimony of Luke Frantz, project manager for Westinghouse, and OHM employees Mary Ann McGlammary, Peter Byer, and David K. Kemp. OHM introduced seventeen exhibits, each of which was accepted into evidence. FDOT presented the testimony of Jon Berry, Patricia Wagner, and Winfield Lindeman, the three FDOT employees who comprised the evaluation committee. FDOT introduced no exhibits. Westinghouse presented the testimony of Dale Carpenter, a Westinghouse employee, and presented eleven exhibits, each of which was accepted into evidence. Among the Westinghouse exhibits were the deposition of Susan Aragon, a Westinghouse employee, and the deposition of Marjorie Bixby, an FDOT employee.

A transcript of the proceedings has been filed. Rulings on the parties' proposed findings of fact may be found in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. The Florida Department of Transportation (FDOT) issued a Request For Proposal (RFP) entitled Statewide Contamination Assessment/Remediation Services. This RFP sought services for a two-year period pertaining to environmental contamination assessment and remediation for construction projects on a statewide basis. The project was identified as RFP-DOT-92/93-9013.

2. Section 1.1 of the RFP described the services as follows: The State of Florida Department of

   Transportation requests written proposals from qualified firms to provide assessment and/or remediation services, on an as needed basis, prior to or during the construction phase of a transportation project. (Emphasis in the original.)

   
   

3. The extent of the services that will be needed during the term of the contract is undetermined at the time the contract is executed. FDOT awards both a statewide contract and related contracts in the several FDOT districts for these services. Westinghouse is currently the contracting party to FDOT for the statewide contract and for several district contracts. OHM is the contracting party to FDOT for several district contracts. The statewide contract is intended to backup the district contracts, and it is necessary that the proposer be able to provide the services on a statewide basis.

   
   

4. Responses to the RFP were required to be submitted to FDOT by June 24, 1993. The RFP required the proposers to meet on June 8, 1993, in a mandatory pre-proposal meeting. The purpose of the meeting was to clarify contractual requirements in an open forum. Westinghouse did not seek any clarification about the nature of the facility capabilities FDOT asked proposers to identify.

   
   

5. Nine proposals, including ones from Westinghouse and OHM, were submitted in response to the RFP.

   
   

6. All Responses to the RFP were evaluated by an evaluation committee consisting of three FDOT employees. The FDOT evaluation committee consisted of Jon Berry, Patty Wagner, and Winfield Lindeman. Each committee member received a copy of each proposal submitted and the committee members individually scored the proposals. The selection committee evaluated each proposal on its own merits without regard to other proposals. Although the RFP provided for the right to inspect facilities to verify the proposers ability to perform, the selection committee relied on each proposal as submitted and made no independent investigation to confirm the accuracy of any representation made in a proposal.

   
   

7. The RFP allotted points for scoring the proposals to be 40 points for the management proposal, 40 points for the technical proposal, and 20 points for the cost proposal. In addition, 5 points could be awarded a disadvantaged business enterprise, for a possible total of 105 points. The selection committee did not review or score the cost proposals which were required to be submitted separately, and the evaluation of the cost proposals was not at issue in this proceeding.

8. The Proposal Tabulation which was posted July 12, 1993, listed Westinghouse receiving the highest score of 97.08 points, and OHM the next highest with a total of 93.23 points. The proposal tabulation indicated that FDOT intended to award the contract to Westinghouse.

   
   

9. Section 1.7 of the RFP, entitled Department Reservations and Responsiveness of Proposals, provided, in pertinent part, as follows:

   
   

   1. General

      The Department reserves the right to accept or reject any or all proposals received and reserves the right to make an award without further discussions of the proposals submitted. Therefore, the proposals should be submitted initially in the most favorable manner. It is understood that this proposal will become a part of the official file on this matter without obligation to the Department.

      
      

   2. Responsiveness of Proposals All proposals must be in writing. A

   responsive proposal is an offer to perform the scope of services called for in this Request for Proposal. Proposals found to be non-responsive proposals shall not be considered. Proposals may be rejected if found to be irregular or not in conformance with the requirements and instructions herein contained. A proposal may be found to be irregular or non-responsive by reasons, including, but not limited to, failure to utilize or complete prescribed forms, conditional proposals, incomplete proposals, indefinite or ambiguous proposals, improper or undated signatures.

   
   

   * * *

   
   

   1. Other Conditions

      Other conditions which may cause rejection of proposals include evidence of collusion among proposers, obvious lack of experience

      or expertise to perform the required work, or failure to perform or meet financial obligations on previous contracts . . .

      
      

   2. Waivers

   The Department may waive minor

   informalities or irregularities in proposals received where such is merely a matter of form and not substance, and the correction or waiver of which is not prejudicial to other proposers. Minor irregularities are defined as those that will not have an adverse effect

   on the Department's interest and will not affect the price of the Proposals by giving a proposer an advantage or benefit not enjoyed by other proposers.

   
   

10. The relevant portion of the RFP for purposes of OHM's protest concerns "facility capabilities." OHM asserts that Westinghouse's Technical Proposal contained a false statement as to its facilities that is tantamount to misconduct and renders Westinghouse's response to the RFP non-responsive.

    
    

11. The RFP, on page 10 of the RFP under item 3, "Proposer's Technical Plan" requires, in pertinent part, as follows:

    
    

    1. This section should be presented to explain the approach, capabilities and means to be used in accomplishing the tasks in the Scope of Services. Any other specific techniques to be used should also be addressed in detail.

       
       

       * * *

       
       

       The Technical Plan must at a minimum address the following:

       
       

       * * *

       
       

       (4) Facility Capabilities

       
       

       Include a description and the location of the proposer's facilities as they currently exist and as they will be employed for the purpose of this work. Explain the justification and benefits of the facility location or proposed location. Realistically calculate the response time from the facility or proposed facility to the furthest area within the region to be served.

       
       

12. Westinghouse's Technical Plan provides, at pages 57 through 59, in pertinent part, as follows:

    
    

    The Westinghouse project team will be led by our Tampa office. The Westinghouse

    Program Manager and all other management and administrative functions will be directed out of Tampa. Project tasks will be performed out of our existing facilities in Tampa, Tallahassee and North Miami, Florida.

    Additional resources, if needed to support any of the three Florida facilities, are available in our Southern District office located in Atlanta, Georgia. A key advantage of the Westinghouse team is that these are all existing and established facilities, staffed and supplied with personnel, equipment, and materials necessary to fulfill

    the requirements of this contract. There is a strong working relationship between these offices. We will therefore not incur the costs and logistical problems often associated with the start-up of new facilities. These existing facility locations are shown in Figure 3-3.

    
    

    The following paragraphs describe Westinghouse facilities in Tampa, Tallahassee, North Miami, and Atlanta. The following paragraphs discuss our current resources within our three Florida facilities, as well as our plans to further increase the resources within these facilities. In addition to these resources, Westinghouse offers specialized assistance to the Department from our vast corporate resources. Our corporate structure allows and encourages the Florida offices to access specific expertise within Westinghouse for problem solving on a particular site. We welcome the Department's review of our facilities.

    
    

    * * *

    
    

    North Miami. Florida Resources. The Westinghouse North Miami Facility is a relatively new facility located at 16221 N.W. 57th Street in North Miami, Florida. The office phone number is (305) 620-0530. The facility has approximately 3000 square feet of office area and 5,000 square feet of warehouse area which will be stocked to accomplish the work within the South Florida area. The facility has a small storage area for equipment. Equipment not able to be stored at this office location is stored on the project site or at subcontracted storage facilities. The office currently has managerial personnel and future plans for this office include procuring additional personnel in the technical and construction field service categories. Depending on future work under District Contracts, additional managerial capabilities may be supplemented to this office. Westinghouse anticipates maintaining a staff of eight to twelve individuals within this office.

    
    

13. Figure 3-3 entitled "Westinghouse Contract Facility Locations" depicts a Westinghouse satellite office in Tallahassee, a Westinghouse satellite office in North Miami, a Westinghouse contract management office in Tampa, and a Westinghouse regional office in Atlanta. Appendix C of the Westinghouse response provided information pertaining to jobs that Westinghouse had

    performed. While Appendix C does not discuss the location of office facilities, the information contained in Appendix C establishes that Westinghouse had the ability to satisfactorily provide services to FDOT in South Florida.

    
    

14. OHM contended that the response by Westinghouse relative to the North Miami facility was a misrepresentation in that there was no Westinghouse office in North Miami at the time the response was submitted. On June 24, 1993, the date the response to the RFP was submitted, Westinghouse did not have a functioning Westinghouse facility at 16221 NW 57th Avenue, North Miami, Florida. Westinghouse did not physically occupy or use the facility at the NW 57th Avenue address on June 24, 1993. The telephone service that had been secured for the NW 57th Avenue facilities forwarded calls to Westinghouse's Tampa office. Any mail sent to Westinghouse at the NW 57th Avenue facility on or before June 24, 1993, would have been returned to the sender.

    
    

15. On the date it submitted its response to the RFP, Westinghouse had an existing South Florida facility located in Miramar, Broward County, Florida. This office was part of the facilities leased by Precision Laboratory, a company with which Westinghouse worked to develop business. The Westinghouse office it shared with Precision Laboratory in Miramar was a temporary facility that was used by Westinghouse to perform contamination assessment and remediation services for FDOT until Westinghouse could relocate to its permanent facility. The Westinghouse South Florida temporary office in Miramar included a receptionist and lobby area, storage space, and a separate office. The facility had telephones and access to a fax machine and a copy machine.

    
    

16. In February, 1993, Westinghouse hired Russell Libera to serve as head of its professional staff in South Florida. Westinghouse began occupying its temporary facilities in March, 1993. Westinghouse was actively performing assessment and remediation services in South Florida between February 1993 and the date the response to the RFP was submitted.

    
    

17. Marjorie Bixby is the FDOT's Environmental Manager and the District Contamination Impact Coordinator for District Six, which is Dade and Monroe County. By contract entered into February 9, 1993, FDOT District Six contracted with Westinghouse to provide environmental remediation services upon request by FDOT for the district. Ms. Bixby manages this contract for FDOT. Westinghouse had satisfactorily performed services under the District Six contract between February 1993 and the date the response to the RFP was submitted. Ms. Bixby was able to contact Mr. Libera through his pager phone number or by telephoning Westinghouse's temporary facility in Miramar.

    
    

18. Westinghouse had a staffed and functioning office in South Florida at all times pertinent to this proceeding. Except for the location of the office, which will be addressed below, the description of the facilities and the capabilities of Westinghouse's South Florida facilities were fairly stated by Westinghouse's response to the RFP.

    
    

19. Luke Frantz, Westinghouse's Florida Branch Manager, was responsible for the writing and submission of Westinghouse's proposal. Mr. Frantz wanted Westinghouse's proposal to induce FDOT to award the statewide contract to Westinghouse. At the time he wrote the narrative, Mr. Frantz believed Westinghouse had an agreement to lease said property. Mr. Frantz' responsibilities as Westinghouse's Florida Branch Manager did not include the acquisition of real estate or finalization of real estate documents on behalf of Westinghouse.

20. In October 1992, Mr. Frantz identified the need for a permanent South Florida facility for Westinghouse, and began a search for a permanent location. Because of the impact of Hurricane Andrew, office and storage space in South Florida was at a premium. Dale Carpenter, who is the nationwide manager of equipment and facilities for Westinghouse out of its Atlanta, Georgia office, was advised by Mr. Frantz and Westinghouse's Southern District Manager on April 15, 1993, of the need to locate a facility in the central or northern part of Dade County or the southern part of Broward County, Florida. Mr. Carpenter assumed responsibility for locating a permanent office, and Mr. Frantz had no further involvement with the leasing of the specific building at 57th Avenue.

    
    

21. Mr. Carpenter flew to Miami in late April 1993 and located, in conjunction with a Westinghouse approved realtor, a facility that was suitable for Westinghouse's permanent office. The day after Mr. Carpenter returned to Atlanta from Miami in late April, the desired property in South Florida was no longer available.

    
    

22. Mr. Carpenter returned to Florida in late May, 1993, after Westinghouse's local realtor advised him of another suitable piece of property at 16221 N.W. 57th Avenue, Miami, Florida.

    
    

23. During the May visit, both Mr. Carpenter and Mr. Libera viewed the property. At that time, Mr. Carpenter decided to rent the property and asked the landlord to send the appropriate documents to him. The lease proposal was faxed by the landlord to Mr. Carpenter in Atlanta on May 25, 1993. According to Westinghouse procedures, the lease document was forwarded to the Westinghouse realty department in Pittsburgh, Pennsylvania for legal and environmental review. The Westinghouse realty department identified as major issues in the lease agreement that had been submitted by the landlord the holdover terms, the security deposit requirements, and the environmental provisions.

    
    

24. On June 9, 1993, Mr. Carpenter formally notified the landlord of Westinghouse's intent to lease the property 16221 N.W. 57th Avenue, Miami. The letter provided, in pertinent part, as follows:

    
    

    Please accept this letter as a "Letter

    of Intent" for the rental of your property located at 16221 N.W. 57th Avenue, Miami, Florida. The lease agreement and amendments are in our Pittsburgh, Pennsylvania office being reviewed by our realty and legal departments. I expect this review to be completed yet [sic] this week. Provided there are no major issues to be resolved as a result of this review, I expect to be able to have the lease signed no later than the first of next week.

    
    

    I have also enclosed a check in the amount equal to the first months rent as a deposit on the facility.

    
    

    I thank you for your time and understanding concerning this matter and look forward to a long relationship.

25. The check enclosed in Mr. Carpenter's letter was in the amount of

    $1,535.10 and was dated June 9, 1993. Mr. Carpenter testified that there have been no instances where Westinghouse has issued a letter of intent to lease real estate and not followed through by actually entering into a lease.

    
    

26. Details of the lease document were handled by the realty office in Pittsburgh. On June 22,1993, Mr. Carpenter was advised by the Westinghouse realty office the lease document had been fully accepted and was ready for signature.

    
    

27. The formal lease agreement was executed by the parties after June 26, 1993, the date the response to the RFP was submitted.

    
    

28. Mr. Carpenter testified that while the lease was approved by Westinghouse's realty office June 22, 1993, it sat unsigned in his Atlanta office for several days while he was traveling. The required Westinghouse signatory, Mr. Fernandez, was on vacation during this time period, further delaying the execution of the document. The Westinghouse signatures on the lease document were affixed on or about July 9, 1993. On July 15, 1993, the executed lease was mailed to the landlord, who thereafter executed the lease. Westinghouse assumed occupancy of the premises on August 1, 1993.

    
    

29. Mr. Carpenter considered that Westinghouse had an agreement to lease the property as of June 9, 1993, when Westinghouse sent its letter of intent and check to the Lessor. Mr. Frantz inquired and received information concerning the status of the 57th Avenue property from Mr. Carpenter before Mr. Frantz completed the response to the RFP. Mr. Carpenter told Mr. Frantz that the lease of the 57th Avenue property was a "done deal."

    
    

30. Mr. Frantz certified that the Westinghouse proposal was fair, complete, and without fraud or collusion. Mr. Frantz understood that the RFP required information as to how Westinghouse proposed to perform the contract for the next two years, using existing and/or proposed facilities.

    
    

31. The evidence in this proceeding fails to establish that there was any intent on the part of Mr. Frantz or any other Westinghouse employee to mislead FDOT as to its capabilities or to secure an unfair advantage over any other proposer. When Mr. Frantz wrote the proposal narrative, he believed that the acquisition of the 57th Avenue office had been consummated.

    
    

32. Further indicators of Mr. Frantz' intent or knowledge concerning the status of the 57th Avenue property include independent administrative steps taken to set up the 57th Avenue office in early June. Mr. Frantz instructed Susan Aragon, the office coordinator for Westinghouse Remediation Services, Inc. in Tampa, Florida, to make sure that the North 57th Avenue office had adequate administrative support. In early June, Ms. Aragon was assigned by Mr. Frantz to obtain telephone service for the 57th Avenue facility. Ms. Aragon ordered telephone lines from Southern Bell on or before June 11, 1993, for the 57th Avenue office. Telephone bills indicate the telephone line (305)620-0530 acquired by Ms. Aragon for the 57th Avenue facility began service June 24, 1993.

    
    

33. Mr. Frantz instructed Ms. Aragon to order new letterhead stationery to reflect a Westinghouse office at 16221 N.W. 57th Avenue, Miami, Florida. A purchase order for that stationery was signed by Mr. Frantz on June 11, 1993.

34. The description of the North Miami, Florida, facility by Westinghouse in its June 24, 1993, proposal is a reasonable and fair description of Westinghouse's resources at the time the proposal was submitted to FDOT.

    
    

35. Westinghouse also submitted a proposal to FDOT District IV in response to a request for proposal for environmental and remediation services in that district. The District IV RFP gave proposers scoring preference if they had a facility in either Dade, Broward, or Palm Beach Counties. Mr. Frantz was responsible for the preparation and submission of the Westinghouse proposal for the District IV RFP and inserted essentially the identical information as to its facility capabilities as was contained in the response to the subject RFP. Westinghouse was awarded the District IV contract. OHM argues that Westinghouse waited until after it had been awarded the subject contract and the District IV contract before going forward with the lease of the NW 57th Avenue facility and thereby received a competitive advantage over its other proposers. That argument, and the inferences that underlie the argument, are contrary to the greater weight of the evidence and are rejected. The record is clear that Westinghouse was in transition between a temporary location and a permanent location for its South Florida facilities. It is also clear that Westinghouse was committed to securing permanent facilities in South Florida and that it intended to go forward with the lease of the permanent facilities even if it had not been selected for the subject contract.

    
    

36. The Westinghouse office at 57th Avenue is currently in operation and was in operation prior to August 1, 1993. Six Westinghouse professional staff are working out of the 57th Avenue office. Contrary to the representations made in its proposal, Westinghouse incurred expenses with the start-up of its NW 57th Avenue facility. These operational expenses were not significant and were not shown to have any impact on Westinghouse's ability to perform the contract. There was no showing that the representation that there would be no start-up costs for the NW 57th Avenue facility provided Westinghouse with a competitive advantage over the other proposers.

    
    

37. The location of the Westinghouse facility was not important to the members of the evaluation team because the key issue and grading criteria was the proposer's ability to perform the services statewide. Immediate response to the contract is not contemplated because services are performed only after funding can be secured by FDOT for the requested services. The funding process typically takes a week or more, which gives the provider adequate time to prepare to perform the services. Westinghouse clearly demonstrated in its response to the RFP and at the formal hearing that it had the facilities to perform the subject services throughout the state, including in South Florida.

    
    

38. The location of field offices, such as the North 57th Avenue facilities, were not important to the evaluators. A field services office, such as the 57th Avenue Westinghouse facility, is a facility from which various field activities can be conducted. The field office is used as a base of operation. A field office may, from time to time, be unoccupied and telephone calls to the field office forwarded to the company's main office. The staffing of a field office varies depending on the work that has to be done.

    
    

39. Each evaluator testified he or she independently scored the proposals and was not influenced in the evaluation process by anyone.

    
    

40. There was no evidence that the evaluation committee members or any other participant in the bidding process acted fraudulently, arbitrarily, illegally, or dishonestly.

    CONCLUSIONS OF LAW

    
    

41. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties. Section 120.53(5), Florida Statutes.

    
    

42. Petitioner has the burden of proving the allegations in its Petition by a preponderance of competent, substantial evidence. Department of Transportation v. J.W.C. Company. Inc., 396 So.2d 778 (Fla. 1st DCA 1988).

    
    

43. In Department of Transportation v. Grove-Watkins Constructors, 530 So.2d 912, 914 (Fla. 1988), the court held that the standard of review in the context of bid protests is as follows:

    
    

    . . . the scope of inquiry is limited to whether the purpose of competitive bidding has been subverted. In short, the hearing officer's sole responsibility is to ascertain whether the agency acted fraudulently, arbitrarily, illegally, or dishonestly.

    
    

44. A public agency has wide discretion in the competitive bid process and that, based upon an honest exercise of discretion, its decision should not be overturned even if the decision is erroneous and even if a reasonable person might disagree. Liberty County v. Baxter's Asphalt Concrete. Inc., 421 So.2d

    505 (Fla. 1982); C. H. Barco Contracting Company v. Department of Transportation, 483 So.2d 796, 800 (Fla. 1st DCA 1986).

    
    

45. Chapter 287, Florida Statutes, regulates contractual procurement process by state agencies. In Section 287.012(16), Florida Statutes, a responsive proposal is defined as a bid or proposal submitted by a responsive and responsible or qualified, bidder or offeror which conforms in all material respects to the invitation to bid or request for proposals.

    
    

46. The parties agree that an agency can reserve the right to waive minor irregularities in bids, but it cannot waive variances which are material and would give one proposer an advantage over the other proposers. Petitioner asserts that Westinghouse misrepresented a material fact pertaining to its South Florida facilities, that the misrepresentation constitutes misconduct, and that the misconduct cannot be waived by the agency. Petitioner's arguments are rejected because Westinghouse did not misrepresent its capabilities in South Florida. At the time of the submission of the proposal, Westinghouse had an agreement to lease the North 57th Avenue premises as evidenced by the letter of intent and the check enclosed therewith, and Westinghouse was actively providing assessment and remediation services from a temporary location until it could move to its permanent location.

    
    

47. Even if the Westinghouse response is construed to be misleading because Westinghouse may not have had an enforceable lease for the North 57th Avenue property when it submitted its proposal, the deviation was not material. Not every deviation from a request for proposal is deemed material. It is only those deviations which afford one proposer a substantial advantage over other proposers so as to restrict and stifle competition that will be considered material. See, Tropabest Foods. Inc. v. Department of General Services, 493 So.2d 50 (Fla. 1st DCA 1988). In this proceeding, Westinghouse has not been afforded any advantage over any other proposer.

48. Petitioner relies upon Boozer v. Department of Health and Rehabilitative Services, (11 FALR 4825, DOAH Nos. 89-2712 BID and 89-2773 BID), which involved a bid solicitation for the leasing of office space by HRS with the award going to the lowest bidder. Invitations to bid and request for proposals are different by nature. In Systems Development Corp. v. Department of Health and Rehabilitative Services, 423 So.2d 433, 434 (Fla. 1st DCA 1982), the court distinguished between an ITB and a request for proposals (RFP), and stated:

    
    

    Typically, an (ITB)) is rigid and identifies the solution to the problem. By definition, the invitation specifically defines the scope of the work required by soliciting bids responsive to the detailed plans and specifications set forth. Section 287.057(1)(a) and (2), as amended. On the contrary, an RFP is flexible, identifies the problem, and requests a solution.

    Consideration of a response to an (ITB) is controlled by cost, that is, the lowest and best bid, whereas consideration of an offer to an RFP is controlled by technical excellence as well as cost. (Footnote omitted.)

    
    

49. Boozer v. DHRS, supra, is inapplicable to the instant matter for several reasons. Boozer involved an invitation to bid and was governed by Section 255.25(3), F.S. (1988 Supp.) which specifically relates to State agencies leasing space. The invitation to bid in Boozer specified that the building had to be existing, dry, and capable of being measured at the time the bid was submitted. DHRS, the agency in Boozer, was specifically seeking office space, not services, and the exact square footage was the material issue and the purpose of the specifications. DHRS disqualified the apparent low bidder in Boozer because the building it offered was under construction and did not meet the material bid specifications. In contrast, the instant case involves an agency's request for proposals for services pursuant to Chapter 287, Florida Statutes, which gives the agency more flexibility in evaluating the responses. As discussed above, the exact location of a proposer's field offices was not a material issue to FDOT or to the evaluators.

    
    

50. Intervenor Westinghouse asserted in its Motion to Intervene that it considered itself entitled to attorney's fees and costs pursuant to Section 120.57(1)(b)5, Florida Statutes. The Motion to Intervene's prayer for relief does not request an award of attorney's fees and costs in the event Intervenor prevails. In its post-hearing submittal, the Intervenor requests an award of attorney's fees and costs pursuant to Section 120.59(6), Florida Statutes. No motion or other pleading has been filed asserting its right to attorney's fees and costs pursuant to Section 120.59(6), Florida Statutes. The post-hearing submittal does not assert its right to attorney's fees and costs pursuant to Section 120.57(1)(b)5, Florida Statutes. Section 120.59(6), Florida Statutes, provides in relevant part that a prevailing party may recover reasonable attorney's fees from a non-prevailing adverse party who has participated in any proceeding pursuant to Section 120.57(l) for an improper purpose. However, Section 120.59(6)(e)3, Florida Statutes, excludes from the definition of a prevailing party ". . . any party that has intervened in a previously existing proceeding to support the position of an agency." Westinghouse intervened in

this proceeding in support to support the position of the agency. Consequently, it is concluded that Westinghouse is not entitled to attorney's fees or costs pursuant to Section 120.59(6), Florida Statutes. Further, it is concluded that Westinghouse has not properly raised the issue of its entitlement to fees and costs pursuant to Section 120.57(1)(b)5, Florida Statutes.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, the Florida Department of Transportation,

enter a final order which dismisses the bid protest filed by Petitioner, OHM Remediation Services Corporation, and which awards the subject contract to Intervenor, Westinghouse Remediation Services, Inc.

DONE AND ORDERED this 21st day of October, 1993, in Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

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 21st day of October, 1993.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-4776BID

The following rulings are made on the proposed findings of fact submitted on behalf of Petitioner.

1. The proposed findings of fact in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 10, 11, 12, 13, 14, 15, 18, 22, and 23 are adopted in material part by the Recommended Order.

2. The proposed findings of fact in the first three sentences of paragraph

   9 are adopted in material part by the Recommended Order. The proposed findings of fact in the last sentence of paragraph 9 are rejected as being unnecessary to the conclusions reached.

3. The proposed findings of fact in paragraph 16 are rejected to the extent that the proposed findings are contrary to the findings made.

4. The proposed findings of fact in paragraphs 17 and 19 are subordinate to the findings made.

5. The proposed findings of fact in the first sentence of paragraph 20 are rejected as being contrary to the findings made. The proposed findings of fact in the remainder of paragraph 20 are rejected as being unnecessary to the conclusions reached.

6. The proposed findings of fact in paragraph 21 are either adopted by the Recommended Order or are subordinate to the findings made.

7. The proposed findings of fact in paragraphs 24, 25, 26, 27, and 28 are subordinate to the findings made.

8. The proposed findings of fact in paragraphs 29, 30, 31, and 32 pertain to matters that occurred after the posting of the evaluations and are unnecessary to the conclusions reached.

9. The proposed findings of fact in paragraphs 33, 34, 35, and 36 are rejected as being unnecessary to the conclusions reached.

The following rulings are made on the proposed findings of fact submitted by Respondent.

1. The proposed findings of fact in paragraphs 1 and 2 are adopted by the Recommended Order as findings of fact and are incorporated as preliminary matters.

2. The proposed findings of fact in paragraphs 3, 4, 6, 7, 8, 9, 11, 13, 14, 16, and 22 are adopted in material part by the Recommended Order.

3. The proposed findings of fact in paragraph 5 are adopted in part by the Recommended Order and are rejected in part as being unnecessary to the conclusions reached.

4. The proposed findings of fact in paragraphs 10, 15, 20, 21, and 23 are adopted by the Recommended Order or are subordinate to the findings made.

5. The proposed findings of fact in paragraph 12 are rejected as being unnecessary to the conclusions reached.

6. The proposed findings of fact in paragraphs 17, 18, and 19 are subordinate to the findings made.

The following rulings are made on the proposed findings of fact submitted by Intervenor (paragraphs 9-106 of its Proposed Recommended Order.)

1. The proposed findings of fact in paragraphs 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 22, 26, 28, 29, 35, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 58, 62, 63, 64, 65, 66, 67, 71, 72, 79, 80, 91, 92, and 93 are adopted in material part by the Recommended Order.

2. The proposed findings of fact in paragraphs 20, 21, 23, 24, 25, 27, 31, 54, 55, 56, 57, 59, 60, 61, 68, 69, 70, 73, 74, 75, 76, 77, 78, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 94, 95, and 96 are subordinate to the findings made.

3. The proposed findings of fact in paragraph 30 are rejected as being unsubstantiated by the evidence. Mrs. Bixby's deposition testimony is unclear as to whether these 17 tasks were performed before the submission of the response to the RFP. As reflected by the findings made, it is clear from Appendix C to the response and from Ms. Bixby's testimony that Westinghouse had satisfactorily performed services District VI prior to the submission of its response to the RFP.

4. The proposed findings of fact in paragraphs 32, 33, 34, 36, and 37 are corroborative of findings made, but they are unnecessary as separate findings of fact.

5. The proposed findings of fact in paragraphs 97, 98, and 99, are rejected as being unnecessary to the conclusions reached.

6. The proposed findings of fact in paragraphs 100, 101, 102, 103, 104, 105, 106 are rejected as being irrelevant to any matter that is properly at issue in this proceeding.

COPIES FURNISHED:

George N. Meros, Jr., Esquire Michael E. Riley, Esquire Rumberger, Kirk, & Caldwell, P.A. Post Office Box 10507 Tallahassee, Florida 32302

Paul Sexton,ESquire Department of Transportation Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399-0458

Betty J. Steffens, ESquire

H. Darrell, White, Esquire

McFarlain, Wiley, Cassedy & Jones, P.A. Post Office Box 2174

Tallahassee, Florida 32316-2174

Ben G. Watts, Secretary Department of Transportation Attn: Eleanor F. Turner

Mail Station 58 Haydon Burns Building 605 Suwannee Street

Tallahassee, Florida 32399-0458

Thornton J. Williams, General Counsel Department of Transportation

562 Haydon Burns Building Tallahassee, Florida 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 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 TRANSPORTATION

OHM REMEDIATION SERVICES CORPORATION,

Petitioner,

vs.

DOAH CASE NO. 93-4776B1D

FLORIDA DEPARTMENT OF DOT CASE NO. 93-0424 TRANSPORTATION,

Respondent,

and

WESTINGHOUSE REMEDIATION SERVICES, INC.,

Intervenor.

/

FINAL ORDER

This proceeding is an administrative bid protest by OHM REMEDIATION SERVICES CORPORATION, (hereinafter OHM REMEDIATION), challenging the DEPARTMENT OF TRANSPORTATION's, (hereinafter DEPARTMENT), decision to award a statewide contract for environmental remediation services to WESTINGHOUSE REMEDIATION SERVICES, INC., (hereinafter WESTINGHOUSE REMEDIATION). This matter was referred to the Division of Administrative Hearings and a formal hearing was held September 7, 1993.

After hearing and the submission of proposed recommended orders by the parties, a Recommended Order (copy attached) was issued, recommending that OHM REMEDIATION's bid protest be dismissed and that the contract be awarded to WESTINGHOUSE REMEDIATION. OHM REMEDIATION filed exceptions to certain findings of fact contained in the Recommended Order. No exceptions or objections were made regarding the Conclusions of Law in the Recommended Order. Upon consideration of the exceptions and the evidence of record, the DEPARTMENT has determined that, with one minor exception, OHM REMEDIATION's exceptions should be denied.

RULINGS ON EXCEPTIONS

1. In its first exception, OHM REMEDIATION takes issue with the finding in paragraph 6 of the Recommended Order, that "the Selection Committee relied on each proposal as submitted." This "finding" is actually just a portion of the following sentence:

   
   

   Although the RFP provided for the right to inspect facilities to verify the proposers ability to perform, the selection committee relied on each proposal as submitted and made no independent investigation to confirm the accuracy of any representation made in a proposal.

   
   

   Recommended Order, at 5.

   
   

   The DEPARTMENT may not modify findings of fact that are susceptible to ordinary methods of proof unless they are not supported by competent substantial evidence. Heifetz v. Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, 475 So.2d 127 (Fla. 1st DCA 1985). This issue was susceptible to ordinary methods of proof and the record contains competent substantial evidence to support the finding in the context of the above sentence. The DEPARTMENT is not free to embellish the finding as OHM REMEDIATION proposes. OHM REMEDIATION's first exception is denied.

   
   

2. In its second exception, OHM REMEDIATION takes issue with the finding in paragraph 13 of the Recommended Order, that "Appendix C establishes that Westinghouse had the ability to satisfactorily provide services to FDOT in South Florida." OHM REMEDIATION asserts that whether Westinghouse had the ability to provide services to FDOT in any part of Florida was not at issue in this proceeding, rather, the issue was whether Westinghouse's proposal contained a false statement regarding the existence of the facility.

   
   

3. OHM REMEDIATION's exception is not well taken. The real issue in this case is whether WESTINGHOUSE REMEDIATION misrepresented a material fact. Therefore it is quite proper to explore all facts affecting the materiality of any misstatement in response to the "Facilities Capabilities" portion of the RFP. The DEPARTMENT was not pursuing some abstract purpose in requesting information on "Facilities Capabilities." The record shows that information on "Facilities Capabilities" serves the purpose of helping evaluate the ability of a bidder to deliver remediation services statewide. The Facilities Capabilities portion of the RFP states in part, "[e]xplain the justification and benefits of the facility location or proposed location." To the extent that another portion of a proposal addresses the delivery of services in an area of Florida, they touch directly on the purpose sought to be achieved by requiring information on Facilities Capabilities: to deliver services. OHM REMEDIATION's second exception is denied.

   
   

4. In its third exception, OHM REMEDIATION takes issue with paragraph 16 of the Recommended Order, for the same reasons as its second exception. OHM REMEDIATION's third exception is denied for the same reasons as noted above.

   
   

5. In its fourth exception, OHM REMEDIATION takes issue with the finding in paragraph 18 of the Recommended Order, that "[e]xcept for the location of the office, . . . the description of the facilities and the capabilities of Westinghouse's South Florida facilities were fairly stated. . . ." In its

   exception, OHM REMEDIATION argues that Westinghouse's facilities in Miramar did not correspond to the description stated in the proposal and, therefore, were not fairly stated in Westinghouse's proposal. OHM REMEDIATION's exception is not justified. The finding does not specifically refer to the Miramar facility and the better reading of the quoted finding is that it refers to all South Florida facilities, not just the Miramar office. OHM REMEDIATION's fourth exception is denied.

   
   

6. In its fifth exception, OHM REMEDIATION takes issue with the finding in paragraph 24 of the Recommended Order, that "[o]n June 9, 1993, Mr. Carpenter formally notified the landlord of Westinghouse's intent to lease the property...." OHM REMEDIATION argues that, because the letter conditions acceptance on a review of the lease, the letter cannot be construed as a formal intention to lease the property. A review of the record shows that the above- quoted finding is based directly on the testimony of Mr. Carpenter, which was presented without objection. Paragraph 23 of the Recommended Order does note that issues regarding the lease had been raised by the WESTINGHOUSE REMEDIATION realty office and paragraph 24 quotes the letter of intent itself. Therefore, given the context of the above-quoted finding, OHM REMEDIATION's fifth exception is denied.

   
   

7. In its sixth exception, OHM REMEDIATION takes issue with the finding in paragraph 25 of the Recommended Order, that ". . .there have been no instances where Westinghouse has issued a letter of intent to lease real estate and not followed through by actually entering into a lease." OHM REMEDIATION argues that Mr. Carpenter was not competent to identify all real estate transactions entered into by Westinghouse. OHM REMEDIATION's exception is somewhat justified.

   
   

8. OHM REMEDIATION did not challenge Mr. Carpenter's competence to testify as to his knowledge of real estate transactions entered into by WESTINGHOUSE REMEDIATION. He testified that he had been responsible for the acquisition of new facilities for WESTINGHOUSE REMEDIATION on a nationwide basis for three and one-half years. However, Mr. Carpenter only testified to transactions involving his experience in the acquisition of facilities for WESTINGHOUSE REMEDIATION. Therefore, although the finding refers to Mr. Carpenter's testimony, it does not reflect the nature of Mr. Carpenter's experience. The finding should have been:

   
   

   Mr. Carpenter testified that, in his three and one-half years of experience with WESTINGHOUSE REMEDIATION, there have been no instances where his office had issued a letter of intent to lease real estate and Westinghouse had not followed through by actually entering into a lease.

   
   

   OHM REMEDIATION's sixth exception is granted, to the extent that the finding is modified as set forth above. However, this change is not material to the issue in this case.

   
   

9. In its seventh exception, OHM REMEDIATION takes issue with paragraph 26 of the Recommended Order, arguing that it conflicts with the finding in paragraph 24. Since paragraph 24 refers to a letter of intent and paragraph 26 refers to a lease, there is no conflict and OHM REMEDIATION's seventh exception is denied.

10. In its eighth exception, OHM REMEDIATION takes issue with the finding in paragraph 29 of the Recommended Order, that ". . . Mr. Carpenter told Mr. Frantz that the lease of the 57th Avenue property was a 'done deal.'" OHM REMEDIATION argues that Mr. Frantz did not testify as to who told him this. However, the record shows that he did so testify and other testimony by Mr. Frantz and Mr. Carpenter support this inference as well. Therefore, the finding is supported by competent substantial evidence. OHM REMEDIATION's eighth exception is therefore denied.

    
    

11. In its ninth exception, OHM REMEDIATION takes issue with the finding in paragraph 34 of the Recommended Order, that ". . .a reasonable and fair description of Westinghouse's resources at the time the proposal was submitted to FDOT." OHM REMEDIATION argues that this finding is irrelevant to this proceeding because the issue was whether WESTINGHOUSE REMEDIATION misrepresented the existence of the North Miami facility and that in paragraph 14, the Hearing Officer had so found. OHM REMEDIATION's exception is based on a strained reading of the Recommended Order and fails to recognize the actual issue in this case.

    
    

12. The Hearing Officer clearly made no finding regarding misrepresentation in Paragraph 14 of the Recommended Order. The Hearing Officer made a methodical analysis of all the facts surrounding the proposal submitted by WESTINGHOUSE REMEDIATION. This analysis began with a quotation of the RFP language regarding Facilities Capabilities in paragraph 11 and continued through paragraph 34 in a discussion of the facts represented by WESTINGHOUSE REMEDIATION, the efforts made to acquire the 57th Avenue facility, the actual facilities in place on June 24, and the state of mind of WESTINGHOUSE REMEDIATION employees at the time of the submission.

    
    

13. Far from finding a misrepresentation by WESTINGHOUSE REMEDIATION, the Hearing Officer found, in paragraph 29, that Mr. Carpenter believed that WESTINGHOUSE REMEDIATION had an agreement to lease the property before the proposal was submitted, that Mr. Frantz inquired of Mr. Carpenter regarding the status of the property before he wrote the WESTINGHOUSE REMEDIATION submittal, and that Mr. Frantz was told that the lease of the property was a "done deal." While OHM REMEDIATION took exception to the finding that it was Mr. Carpenter who told Mr. Frantz that the lease was a "done deal," it made no exception to the other Findings in that paragraph.

    
    

14. The Hearing Officer also found, in paragraph 31, that the record did not show an intent on the part of Mr. Frantz or any other Westinghouse employee to mislead the DEPARTMENT and that, when Mr. Frantz wrote the proposal, he believed that the acquisition of the 57th Avenue office had been consummated. OHM REMEDIATION took no exception to paragraph 31 at all. Taken together, the findings in the Recommended Order essentially state that, before he wrote the WESTINGHOUSE REMEDIATION proposal, Mr. Frantz made reasonable inquiry of informed WESTINGHOUSE REMEDIATION personnel regarding the status of the 57th Avenue property, was advised and believed that WESTINGHOUSE REMEDIATION had consummated the acquisition of the 57th Avenue property, and had no intent to mislead the DEPARTMENT when he wrote the submission.

    
    

15. The issue in this case is not whether the description of existing facilities capabilities contained in WESTINGHOUSE REMEDIATION's proposal was accurate. The issue is whether WESTINGHOUSE REMEDIATION made a misrepresentation of a material fact in its proposal. OHM REMEDIATION clearly understood the nature of the issue when it submitted its Memorandum of Law asserting that WESTINGHOUSE REMEDIATION "flatly misrepresented" in its proposal

    that it had an existing operating facility in North Miami, that WESTINGHOUSE REMEDIATION's misrepresentation was at least "misconduct" and was "tantamount to fraud." All of these arguments assume scienter on the part of WESTINGHOUSE REMEDIATION, and OHM REMEDIATION has not argued that a simple mistake equates to "illegality, fraud or misconduct" under Department of Transportation v. Groves- Watkins Constructors, 530 So.2d 912 (Fla. 1988).

    
    

16. The issue of "misrepresentation of a material fact" in this case is resolved by determining first whether a misstatement of fact was made; second, whether the misstatement was made intentionally; and third, whether the fact was material to the DEPARTMENT's decision in making the award. The findings in paragraphs 29 and 31 alone establish that there was no misrepresentation of fact made to the DEPARTMENT. The findings in paragraphs 37 and 38 show that the misstatements made by WESTINGHOUSE REMEDIATION were not material to the evaluation of the proposals and did not affect the outcome of the scoring. OHM REMEDIATION's exception is denied.

    
    

17. In its tenth exception, OHM REMEDIATION takes issue with the finding in paragraph 35 of the Recommended Order, that ". . .It is also clear that Westinghouse was committed to securing permanent facilities in South Florida and that it intended to go forward with the lease of the permanent facilities even if it had not been selected for the subject contract." OHM REMEDIATION argues that there was no evidence introduced that would support that finding. OHM REMEDIATION's exception is not well taken. Read as a whole, the record provides competent, substantial evidence to support a finding that WESTINGHOUSE REMEDIATION had an intent to secure permanent facilities in South Florida even if it was not selected for the statewide remediation contract. OHM REMEDIATION's tenth exception is denied.

    
    

18. In its eleventh exception, OHM REMEDIATION takes issue with the finding in paragraph 37 of the Recommended Order, that "The location of the Westinghouse facility was not important to the members of the evaluation team. .

    . ." OHM REMEDIATION argues that the finding conflicts with paragraph 11, which quotes the portion of the request for proposal entitled "Facilities Capabilities." OHM REMEDIATION's exception is not well taken. The importance of any particular information required by a Request for Proposals is a function of the purpose the information serves and the manner in which it is evaluated by the DEPARTMENT. In this case, the location of a proposer's facility was simply used to evaluate the proposer's ability to deliver services statewide. The specific location of a facility in a region of the state is not important to the DEPARTMENT because the contract is for statewide services.

    
    

19. While OHM REMEDIATION has insisted that an accurate description of "existing facilities" is material to the RFP, it has presented no evidence to support that assertion other than the language of the RFP itself. In that regard, OHM REMEDIATION has been notably selective in its quotation of the RFP. The relevant portion of the RFP stated:

    
    

    Include a description and location of the proposer's facilities as they currently exist and as they will be employed for the purpose of this work. Explain the justification and benefits of the facility location or proposed location.

    Realistically calculate the response time

    from this facility or proposed facility to the furthest area within the region to be served.

    
    

    (PET:1, at 10-11)

    
    

    As can plainly be seen, the RFP calls for a description of the proposer's facilities "as they currently exist and as they will be employed for the purpose of this work." This language makes it clear that the DEPARTMENT is looking for the ability to deliver services in the future, not just an inventory of current facilities. The testimony of all three DEPARTMENT witnesses shows that the function of the "Facilities Capability" portion of the RFP was to help evaluate the ability of a proposer to deliver remediation services on a statewide basis. They were uniformly of the opinion that the exact physical location of the facilities is not important to that evaluation.

    
    

20. The record shows that all three DEPARTMENT witnesses were intimately aware of the remediation services sought by the DEPARTMENT and the factors that should be evaluated in deciding who had the best ability to render remediation services. Mr. Berry was the author of prior Requests for Proposals for remediation services; Ms. Wagner was responsible for preparing the Request for Proposals that was issued in this case; and Mr. Lindeman is responsible for environmental education within the DEPARTMENT, and oversees all environmental research within the DEPARTMENT. The testimony of these three witnesses certainly supports a finding that the specific location of a facility is not important under "Facilities Capabilities." OHM REMEDIATION's eleventh exception is denied.

FINDINGS OF FACT

Upon a review of the record, it is determined that the Findings of Fact contained in the Recommended Order, with the one minor exception noted in paragraph 8 above, are supported by competent substantial evidence and are incorporated herein, as amended by paragraph 8 above.

CONCLUSIONS OF LAW

It is determined that the Conclusions of Law stated in the Recommended Order are appropriate and are incorporated herein.

Based on the foregoing, it is

ORDERED that the protest filed herein by PETITIONER, OHM REMEDIATION SERVICES CORPORATION, is hereby dismissed. It is further,

ORDERED that the contract for RFP-DOT-92/93-9013 is hereby awarded to WESTINGHOUSE REMEDIATION SERVICES, INC.

DONE AND ORDERED this 20th day of January, 1994.

BEN G. WATTS, P. E.

Secretary

FLORIDA DEPARTMENT OF TRANSPORTATION

605 Suwannee Street Haydon Burns Building

Tallahassee, Florida 32399-0450

COPIES FURNISHED:

George N. Meros, Jr., Esquire Rumberger, Kirk & Caldwell

106 East College Avenue, Suite 700 Tallahassee, Florida 32301

Betty J. Steffens, Esquire McFarlain, Wiley, Cassedy & Jones

215 South Monroe Street, Suite 600 Tallahassee, Florida 32301

Paul Sexton

Assistant General Counsel DEPARTMENT OF TRANSPORTATION

Haydon Burns Building, MS 58 605 Suwannee Street

Tallahassee, Florida 32399-0458

Patricia Wagner

Environmental Management Office DEPARTMENT OF TRANSPORTATION

Haydon Burns Building, MS 37 605 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

(30) DAYS OF RENDITION OF THIS ORDER.

Docket for Case No: 93-004776BID

Orders for Case No: 93-004776BID