n

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GOLDEN GAVEL AUCTIONEERS, )

)

Petitioner, )

)

vs. )

) CASE NO. 94-5734BID DEPARTMENT OF BANKING AND FINANCE, )

)

Respondent, )

and )

)

FISHER AUCTION CO., INC., )

)

Intervenor. )

)

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 case on October 28, 1994 by videoconference. Attorneys for the Petitioner and Intervenor were located in Tampa, Florida. The Hearing Officer and the attorney for the Respondent were located in Tallahassee, Florida.

APPEARANCES

For Petitioner: Dale M. Vash, Esquire

FOWLER, WHITE, GILLEN, BOGGS, VILLAREAL, & BANKER, P.A.

501 East Kennedy Boulevard Post Office Box 1438 Tampa, Florida 33601

For Respondent: Margaret S. Karniewicz, Esquire

Department of Banking and Finance Suite 1302, The Capitol Tallahassee, Florida 32399-0350

For Intervenor: Bernard T. Moyle, Esquire

BENSON, MOYLE & CHAMBERS

Suite 1602, One Financial Plaza

Fort Lauderdale, Florida 33394-1697 STATEMENT OF THE ISSUE

The issue in this case is whether, in making an award of a contract for auctioneer services, the Department of Banking and Finance acted according to the requirements of law.

PRELIMINARY STATEMENT

The Department of Banking and Finance (Department), in August, 1994, gave notice of a request for proposals for provision of services related to auction of abandoned property. Proposals were received from four vendors and were evaluated by Department personnel.

After evaluation of the proposals, the Department proposed an award to Fisher Auction Co., Inc. Golden Gavel Auctioneers filed a protest which was referred to the Division of Administrative Hearings, which scheduled and noticed the proceeding.

On October 26, 1994, Fisher Auction Co., Inc., filed a Petition to Intervene. At the commencement of the hearing, Fisher's petition was granted.

At hearing, the Petitioner had ten exhibits (marked as Respondent's exhibits 1-10) admitted into evidence. Petitioner's exhibit number 11 (marked as GG#1) was rejected. The Petitioner presented no testimony. The Respondent presented the testimony of one witness and had no exhibits admitted other than those identified as Respondent's exhibits which were admitted during the Petitioner's case presentation. The Intervenor presented no testimony or exhibits. The prehearing stipulation filed by the Petitioner and Respondent was joined by the Intervenor and was admitted as a Hearing Officer exhibit.

No transcript of the hearing was filed. Proposed recommended orders were filed by the Petitioner and jointly by the Respondent and Intervenor, and 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. By publication in the Florida Administrative Weekly, Volume 20, Number 32, August 12, 1994, the Department of Banking and Finance (Department) gave notice of a Request for Proposals (RFP No. BF5/94-95) seeking public auction services related to the disposition of abandoned property.

   
   

2. Timely proposals were submitted by Golden Gavel Auctioneers, Fisher Auction Company, Inc., Wayne Smith Auction Company, and Hamburg Auction Company.

   
   

3. The RFP states that proposals will be evaluated in three phases for compliance with mandatory requirements (Phase I), quality of technical proposals (Phase II) and fee schedules (Phase III).

   
   

4. Proposals were evaluated by three employees of the Department. The RFP provided that the criteria were weighted to permit each proposal to be numerically ranked. Each evaluator could award a score of up to 100 points according to evaluation criteria set forth in the RFP. The contract award would go to the proposal receiving the highest score from the 300 total points available.

   
   

5. The Petitioner presented no evidence that the Phases I and II proposal evaluations were inappropriate or otherwise failed to meet the requirements of law.

6. Phase III of the evaluation process was directed toward examination of the proposed fees to be paid to the successful bidder.

   
   

7. As to the award of points for the fee schedule, the RFP provides as follows:

   
   

   For each proposal received acknowledging the services outlined in this RFP, the corresponding Fee Schedule...will be examined. All fee proposals must be expressed solely in the

   form of a percentage of the gross sales of property sold. A total maximum value of seventy-five (75) pts. will be awarded (out of total of 100 pts) to the lowest proposed

   fee percentage submitted. All other proposals will be awarded points based on the following formula

   Points Awarded for Fee percentage = 75 x (1 - C) C = Difference of proposal fee percentage from lowest proposal; This formula only includes valid proposals. Decimals will be rounded to

   the nearest whole number; .5 points will be rounded upward.

   
   

8. The Petitioner proposed the lowest fee schedule at 9.45 percent of gross sales and, as the lowest fee proposal, received the full 75 points available for Phase III.

   
   

9. Fisher Auction Company was the second lowest bidder, proposing a fee of

   10 percent of gross sales. Application of the formula and calculation of the points awarded was completed according to the following steps:

   
   

   Step 1. 75 x (1 - C)

   Step 2. 75 x [1 - (.10 - .0945)]

   (Note that "C" is the difference of Fisher's

   10 percent fee from Golden Gavel's 9.45) Step 3. 75 x (1 - .0055)

   Step 4. 75 x .9945

   Step 5. 74.58

   
   

10. As provided in the RFP, scores were rounded to the nearest whole numbers. Fisher's point total of 74.58 was rounded to an award of 75 points for Phase III.

    
    

11. Based on evaluation by the three Department employees, the following scores were awarded:

    
    

    Fisher Auction Company - 299 points Golden Gavel Auctioneers - 287 points Wayne Evan Auction Company - 284 points Hamburg Auction Company - 273 points

    
    

12. The Department posted the results at 3:30 p.m. on September 16, 1994, proposing an award to Fisher.

    
    

13. The Petitioner asserts that in calculating the point awards under Phase III of the evaluation process, the evaluator should use the percentage

    difference between the proposed fees rather than the numerical difference as was done by the Department. The result of such application would be a broader range in the points awarded under Phase III of the evaluation. The Petitioner suggests that to do otherwise is contrary to the RFP's stated intention to provide a weighted score to each proposal.

    
    

14. There is no evidence that the Department's application of the formula is inappropriate or that the calculation of points related to fee schedules was fraudulent, arbitrary, illegal or dishonest.

    
    

15. There is no evidence that the Petitioner questioned or objected to the formula set forth in the RFP prior to the announcement of the intended award.

    
    

    CONCLUSIONS OF LAW

    
    

16. 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.

    
    

17. 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).

    
    

18. 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). 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).

    
    

19. In this case, the Department's evaluation of the fee proposals and application of the formula set forth in the RFP is reasonable. The Department's explanation of the formula and its application was clear and logically coherent. There is no evidence whatsoever that the Department's application of the formula was unreasonable, incorrect or contrary to the language of the formula or the RFP or that the Department acted fraudulently, arbitrarily, illegally or dishonestly.

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED that the Department of Banking and Finance enter a Final Order DISMISSING the Petition filed in this case and making an award to the Intervenor.

DONE and RECOMMENDED this 21st day of November, 1994, 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 21st day of November, 1994.

APPENDIX TO CASE NO. 94-5734BID

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

Petitioner

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

3, 6-10. Rejected, unnecessary.

1. Rejected, subordinate.

2. Rejected, the evidence does not indicate that "75 x 3" was part of the formula. Otherwise accepted as modified and included herein.

3. Rejected, the evidence does not indicate that "75 x 3" was part of the formula. There is no evidence that the Department's application of the formula was inappropriate or contrary to the language of the RFP.

   
   

   Respondent and Intervenor

   
   

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

   
   

   3, 6-10. Rejected, unnecessary.

4. Rejected, subordinate.

COPIES FURNISHED:

Hon. Gerald Lewis Comptroller, State of Florida The Capitol, Plaza Level

Tallahassee, Florida 32399-0350

William G. Reeves, General Counsel Department of Banking and Finance Suite 1302, The Capitol Tallahassee, Florida 32399-0350

Dale M. Vash, Esquire

FOWLER, WHITE, GILLEN, BOGGS, VILLAREAL, & BANKER, P.A.

501 East Kennedy Boulevard Post Office Box 1438 Tampa, Florida 33601

Margaret S. Karniewicz, Esquire Department of Banking and Finance Suite 1302, The Capitol Tallahassee, Florida 32399-0350

Bernard T. Moyle, Esquire BENSON, MOYLE & CHAMBERS

Suite 1602, One Financial Plaza Fort Lauderdale, Florida 33394-1697

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.

Docket for Case No: 94-005734BID

Orders for Case No: 94-005734BID