STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PREFERRED SERVICES, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 94-4890BID

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

and )

)

WEKIVA CENTER PARTNERSHIP, )

)

Intervenor. )

)

RECOMMENDED ORDER

A prehearing conference in the above styled case was heard based upon the joint request and agreement of the parties before the Division of Administrative Hearing Officer, Daniel. Kilbride, on December 16, 1994, by video-conference from Tallahassee and Orlando, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Terrence W. Ackert, Esquire

Law Offices of Terrence Wm. Ackert Professional Association

23 South Osceola Avenue Orlando, Florida 32801

400 West Robinson Street Orlando, Florida 32801

For Respondent: James A. Sawyer, Esquire

Eric D. Dunlap, Esquire

District 7 Assistant District Legal Counsel

Department of Health and Rehabilitative Services

400 West Robinson Street, Suite S827 Orlando, Florida 32801

For Intervenor: Ladd Fassett, Esquire

Warlick, Fassett, Divine & Anthony Professional Association

Post Office Box 3387 Orlando, Florida 32802-3387

STATEMENT OF THE ISSUES

Whether the Department of Health and Rehabilitative Services' rejection of the Petitioner's bid, based on the facts and figures available on August 12, 1994, was a proper exercise of the Agency's discretion and was not arbitrary, fraudulent, illegal, or dishonest as to HRS lease No. 590:2500.

PRELIMINARY STATEMENT

This matter arose when Petitioner filed an initial formal notice of protest, pursuant to Section 120.53, Florida Statutes (1993), and Chapter 10-13, Florida Administrative Code, challenging the rejection of Petitioner's bid as non-responsive. Petitioner filed a timely Notice of Intent to Protest and a timely Formal Protest. Prior to the hearing originally scheduled for September 20, 1994, the Petitioner and the Respondent agreed to an abeyance so that the Respondent could evaluate and rank the Petitioner's bid, while at the same time preserving its initial position that the Petitioner's bid was non-responsive.

Subsequently, the Intervenor was announced as the winning bidder. The Petitioner timely filed an Amended Protest of the award of the bid to the Intervenor, alleging additional and further grounds as set forth therein. For the purposes of the prehearing conference, the parties filed a joint prehearing stipulation as follows:

STIPULATION for the purposes of the Dec. 16, 1994 video hearing

1. Preferred Services submitted a bid to the Agency reflecting 14, 463 as the net square feet proposed.

   
   

2. 14,463 is the absolute minimum net square footage that could be submitted to meet the bid specifications.

   
   

3. Preferred Services provided no calculations reflecting how they reached this 14,463 figure submitted in their initial bid submittal. HRS occupied the building since 1986.

   
   

4. Following the bid opening but prior to the rejection of the Preferred Services bid, Preferred was asked to provide calculations which would reasonably provide assurances to the Agency that Preferred in fact had the minimum net square footage available.

   
   

5. One day prior to rejection of the Preferred Services bid, Preferred faxed the attached calculation to the Agency.

   
   

6. The bid specifications regarding restrooms are set forth on page 25 and page 81 (Attachment N) of the bid submittal.

   
   

7. Based on these representations from Preferred, the Agency rejected the Preferred Services bid on August 12, 1994, as non-responsive based on the Agency's interpretation concluding that the bid submitted failed to meet the minimum square footage requirements and the proper number of bathrooms as set forth in the bid specifications. The Agency's evaluation concluded that the Preferred Services bid only proposed two sets of restrooms at 355.823 sq. ft. and that deducting another two sets of restrooms at the same size in order to comply with the bid specifications would cause the Preferred Services bid to fall below the minimum sq. ft. requirements as set forth in the bid submittal.

8. In preparation for the Dec. 20, 1994, hearing, Preferred Services provided the Agency with an architectural drawing on Dec. 15, 1994, which shows that the required restrooms can be located within the Preferred Services Bldg. and there are sufficient minimum sq. ft. available per the bid specifications.

   
   

9. The Agency disputes the calculations contained in paragraph 8, and further contends that the calculation submitted by Preferred Services on Dec. 15, 1994, constitutes an improper modification of the bid.

   
   

10. Although not in its bid or argued prior to rejection of its bid, Preferred now asserts that restrooms can be either in or out of the building.

    
    

    Issue

    
    

11. Whether the Agency's rejection of the Preferred Services bid based on the facts and figures available on August 12, 1994, was a proper exercise of the Agency's discretion and was not arbitrary, etc.

Also filed with the stipulation was an attachment which consisted of a single hand written page which was the document submitted by the Petitioner to the Respondent prior to the rejection of his bid but not included with his original submittal referenced in paragraph 5 of the stipulation noted above.

The handwritten note read as follows:

Jim we have calculated our space based on your standard measurements

The parties also filed a ninety-two (92) page joint exhibit consisting of the entire Invitation to Bid (ITB) and the Bid Submittal submitted by the Petitioner. The joint exhibit did not include a 1986 blueprint of the Petitioner's building which the parties agreed is not necessary for determination of the instant issue. Both the stipulation and attachment and the ITB and Bid Submittal form a part of the record in these proceedings.

Alan Taylor, another bidder for Lease Number 590:2500, did not file a petition to intervene as required by the prehearing orders, and was not made a party to the proceeding.

A request for attorney's fees and costs was filed by Intervenor on December 13, 1994. Fees and costs are not recommended here as there is no evidence of the "improper purpose" described in Section 120.59(6), F.S.

FINDINGS OF FACT

1. The Respondent Department issued an Invitation to Bid (ITB) for Lease Number 590:2500 for office space in an existing building in a geographic area near Apopka, Florida for a ten (10) year lease with options.

2. The ITB called for net square footage of 14,910 + 3 percent, measured in accordance with the Standard Method of Space Measurement.

   
   

3. The ITB and Bid Submittal, including at page 16, Paragraph 10(c) of the Bid Submittal Form lists the documentation that is to be provided to the Respondent at the time of the bid submittal. Included in this list is a requirement that a bidder provide the calculation of the proposed net rentable square feet. Paragraph 10(c) indicates that the square footage calculations are to be based on measurements from the floor plan.

   
   

4. Sealed bids were received until 10:00 a.m. on August 5, 1994.

   
   

5. Petitioner submitted a completed Bid Submittal form in a timely manner.

   
   

6. Petitioner's Bidder Response reflected 14,463 as the net square feet proposed. Respondent Department has occupied the building being offered since 1986.

   
   

7. 14,463 is the absolute minimum net square/footage that could be submitted to meet the bid specifications.

   
   

8. Petitioner provided no calculations indicating how the net square footage proposed in their bid submittal was calculated, other than page 85 which contained the exterior dimensions of the building bid.

   
   

9. The Respondent was entitled to know how the Petitioner calculated the net square feet proposed to determine whether the Petitioner's bid was responsive.

   
   

10. Following the bid opening but prior to the rejection of the Petitioner's bid, Petitioner was asked to provide calculations which would provide reasonable assurances to the Department that Petitioner in fact had the minimum net square footage available.

    
    

11. The Respondent had no obligation to go back to the Petitioner and ask for such calculations.

    
    

12. One day prior to the rejection of the Petitioner's bid, Petitioner faxed a handwritten note to the Department which read as follows:

    
    

    HRS 590-2500			No 5
    Bld Size	117'10" x 130'8"
    Gross Space	115 x 10" x 12810"
    	115.833 x 128.833	=	14,923.113
    	deduct 2-sets
    	Bath Rooms	-	355.873
    	Net Rentable		14,567.240

    
    

    Jim we have calculated our space based on your standard measurements

    
    

13. The bid specifications called for a minimum of 2 sets of restrooms for public and 2 sets of restrooms for staff use, for a total of 4 separate sets of restrooms, each set to provide for male and female and meet other requirements.

    
    

14. Based on these representations from Petitioner, the Department rejected its bid on August 12, 1994, as non-responsive. This decision was based

    on the Department's interpretation which concluded that the bid submitted failed to meet the minimum square footage requirements and to provide for the proper number of bathrooms as set forth in the bid specifications.

    
    

15. The Department's evaluation concluded that the Petitioner's bid only proposed two sets of restrooms at 355.823 square feet. Deducting another two sets of restrooms at the same size in order to comply with the bid specifications would cause the Petitioner's bid to fall below the minimum square foot requirements as set forth in the bid submittal.

    
    

16. Petitioner asserts that the required restrooms can be located within the Petitioner's building, and that there are sufficient minimum square feet available per the bid specifications. In the alternative, Petitioner would show that, under the bid specifications, restrooms could be located either in or out of the building.

    
    

17. The Department's decision to seek clarification prior to rejecting the Petitioner's bid was reasonable.

    
    

18. The Department having done so, the subsequent submittal by Petitioner of calculations in response to the request for clarification was considered as an addendum to the original bid.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

20. The burden of proof and going forward with the evidence is upon the Petitioner to establish that the Respondent's decision to reject its bid as unresponsive was arbitrary, capricious, illegal, or violative of established procedures. Department of Transportation v. Grove-Watkins Constructors, 530 So. 2d 912 (Fla. 1988); J.W.C. Co., Inc. v. Department of Transportation, 396 So.2d 778 (Fla. 1st DCA 1981). The Petitioner did not satisfy this burden.

    
    

21. Reasonable people can disagree as to the documentation provided, in regard to the bid submittal and the attachment to the stipulation. The handwritten not submitted after the bid opening either reflects, or not, a deduction of only two sets of restrooms (as opposed to 4 sets of restrooms) from the gross square feet. The bid specifications clearly called for four (4) set of restrooms and clearly defined the minimum square footage that could be proposed. The documentation provided by the Petitioner only indicates that two sets of restrooms have been deducted from the calculations.

    
    

22. It was reasonable for the Respondent to conclude that the Petitioner's bid was unresponsive by failing to provide the minimum number of restroom sets, or that by deducting another two sets of restrooms, the bid was unresponsive as not meeting the minimum square footage requirements.

    
    

23. There is no proof that the Respondent's interpretation was fraudulent, illegal, arbitrary, or capricious regardless of whether the placement of the restrooms could be constructed inside or outside the walls of the proposed space.

    
    

24. Reasonable minds could disagree as to the interpretation to be given the documentation provided by the Petitioner, but the Respondent's

    interpretation was not arbitrary or capricious. Therefore, the Respondent's determination that the Petitioner's bid was non-responsive was not illegal, arbitrary, fraudulent, or dishonest.

    
    

25. This ruling is dispositive of the other issues in this case since the Respondent cannot award a bid to an unresponsive bidder. Sections 255.249, Florida Statutes and Chapter 10-13, Florida Administrative Code.

    
    

26. The other issues raised by Petitioner in the Formal Protest and Amended Protest are therefore moot, and not addressed herein.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Secretary of the Department of Health and

Rehabilitative Services enter a Final Order dismissing the Petitioner's protest and proceed with the award of bid for HRS Lease No. 590:2500.

DONE AND ENTERED this 29th day of December, 1994, in Tallahassee, Leon County, Florida.

DANIEL M. KILBRIDE

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 29th day of December, 1994.

COPIES FURNISHED:

Terrence William Ackert, Esquire

P. O. Box 2548

Winter Park, Florida 32790

Ronald M. Schirtzer, Esquire Foley & Lardner

111 North Orange Avenue Suite 1800

Orlando, Florida 32801

James A. Sawyer, Jr., Esquire District 7 Legal Counsel Hurston Tower, Suite S-827

400 W. Robinson Street Orlando, Florida 32801-1782

Ladd H. Fassett, Esquire Warlick, Fassett, Divine

& Anthony, P.A.

Post Office Box 3387

Orlando, Florida 32802-3387

Robert L. Powell Agency Clerk

Department of Health and Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Kim Tucker, Esquire Department of Health and Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to the Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the agency that will issue the final order in this case concerning their rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

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DISTRICT COURT OPINION

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IN THE DISTRICT COURT OF APPEAL OF THE STATE Of FLORIDA FIFTH DISTRICT JULY TERM 1995

PREFERRED SERVICES, INC., NOT FINAL UNTIL THE TIME etc., TO FILE REHEARING MOTIONS AND

IF FILED, DISPOSED OF.

Appellant,

Case No. 95-461

v. DOAH Case No. 94-4890BID

DEPARTMENT 0F HEALTH AND REHABILITATIVE SERVICES,

Appellee.

/ Decision filed December 5, 1995

Administrative Appeal from the Department of Health and Rehabilitative Services.

Terrence William Ackert of Law Offices of Terrence William Ackert, P.A., Winter Park, for Appellant.

Eric D. Dunlap, Assistant District Legal Counsel, Department of Health and Rehabilitative Services, Orlando, for Appellee.

PER CURIAM.

AFFIRMED.

GOSHORN, HARRIS and GRIFFIN JJ., concur.

Docket for Case No: 94-004890BID

Orders for Case No: 94-004890BID