STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBERT ALLAN WEINBERG, )

)

Petitioner, )

)

vs. ) CASE NO. 95-1736BID

) DEPARTMENT OF JUVENILE JUSTICE, )

)

Respondent, )

and )

) CENTRAL FLORIDA LEGAL SERVICES, ) INC., )

)

Intervenor. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause came on for formal hearing before P. Michael Ruff, duly-designated Hearing Officer of the Division of Administrative Hearings, on April 17, 1995, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Robert Allan Weinberg, pro se

RW Custom Builders, Inc. 955 Orange Avenue

Daytona Beach, Florida 32114

For Respondent: Scott C. Wright, Esquire

Department of Juvenile Justice 2737 Centerview Drive

Tallahassee, Florida 32399-3100

For Intervenor: G. Steven Pfeiffer, Esquire

APGAR, PELHAM, ET AL.

909 East Park Avenue Tallahassee, Florida 32301

STATEMENT OF THE ISSUES

The issue to be resolved in this proceeding concerns whether the Respondent Department acted fraudulently, arbitrarily, illegally or dishonestly in making a decision to award Central Florida Legal Services, Inc., the Intervenor, a bid concerning a proposed contract to enter into Lease No. 800:0045. Embodied within that general issue are questions involving whether the Petitioner, Robert Allan Weinberg's (Weinberg) response to the Department's Invitation to Bid (ITB) was responsive, was the lowest and best bid and whether the Intervenor's bid was responsive to the ITB and was the lowest and best bid. Finally, it must be

determined whether the Department properly evaluated the bid proposals in accordance with legally-acceptable, competitive bidding principles, in an honest and non-arbitrary fashion.

PRELIMINARY STATEMENT

The Respondent, Department of Juvenile Justice (Department), seeks to obtain office space for its District 12 operations in Daytona Beach, Florida, as a lessee. Consequently, it embarked on a procurement effort to obtain the required space, designed to culminate in the Department's Lease No. 800:0045.

After determining the criteria and specifications it required for its proposed office space, the Department incorporated those specifications in an ITB. The ITB included bid instructions and a bid submittal form. After the ITB was published and noticed, a bidders' conference was held before the date for bid submittals. Three vendors submitted bid proposals. The proposal submitted by the Petitioner and the Intervenor were initially determined to be responsive, but a third proposal was determined not to be responsive because the amount of space offered by that third vendor did not meet the specifications in the ITB. After engaging in its evaluation process, the Department determined to award the bid to the Intervenor.

The Petitioner challenged that decision. It filed a formal protest with the Department, which was ultimately forwarded to the Division of Administrative Hearings and the undersigned Hearing Officer for the conduct of a formal proceeding to adjudicate the issues thus in dispute. A hearing was scheduled in accordance with the time requirements of Section 120.53(5)(e), Florida Statutes, and was set for April 17, 1995. In the meantime, the Intervenor filed a Petition to Intervene, which was granted by order of the Hearing Officer on April 13, 1995.

The Petitioner moved ore tenus for a continuance of the hearing on the basis that it required more time to engage in discovery and to otherwise prepare for the hearing, including the retention of counsel. Although no written motion had yet been filed, the Hearing Officer entertained oral arguments by the parties by telephone conference call on April 14, 1995, which resulted in the requested continuance being denied. The Petitioner then filed a written motion for continuance, which was denied on the record at the outset of the hearing of April 17, 1995, because of the requirement of Section 120.53(5)(e), Florida Statutes, which mandates that the case be heard within fifteen (15) days, absent agreement of all parties to a postponement.

The cause came on for hearing as noticed. The Petitioner called as witnesses, Randall Baker, the General Services Manager for the Department of Management Services; James Wachtel, an architect; Bill Abbuehl, the Executive Director of the Intervenor; Sandy G. Veil and Richard Wade, employees of the Department; and Robert Weinberg, the Petitioner's trustee. The Respondent called Mr. Wade as a witness and the Intervenor called Randall Baker; Richard Wade; Dwight Selby, the real estate broker for the Intervenor; and Mr. Wachtel, who was qualified as an expert witness in the field of architecture, as well as Mr. Abbuehl. The Petitioner's Exhibits 1-10 and Exhibit 12 were received into evidence, and the Intervenor's Exhibits A-L were received into evidence.

Upon conclusion of the hearing, the parties elected to order a transcript thereof and submit proposed findings of fact and conclusions of law in the form of Proposed Recommended Orders. The Proposed Recommended Orders were timely filed and are addressed in this Recommended Order and again in the Appendix attached hereto and incorporated by reference herein.

FINDINGS OF FACT

1. This dispute arose upon the Department electing to seek office space for personnel of its District 12, in Daytona Beach, Florida. After considering the type and nature of the facilities it needed, the Department ultimately published a set of specifications for the desired facility in an ITB. The ITB included detailed instructions for preparation and submittal of bids and a relevant form. A pre-bid conference was conducted and thereafter, three vendors submitted bids. One proposal was determined by the Department to be non- responsive because the amount of space contained in the bid proposed by that vendor did not meet the Department's specifications contained in the ITB. That agency decision was not contested. The bid submitted by the Intervenor, as well as the Petitioner, were both determined to be responsive by the Department. After evaluating the proposals based upon criteria contained in the ITB, the Department ultimately determined that the lowest, best and most responsive bid was that submitted by the Intervenor. It notified the bidders of its decision to award the subject bid to the Intervenor, and the Petitioner filed a protest. A formal written protest was timely filed, initiating this proceeding.

   
   

2. The issues raised by the parties, concerning the relative responsiveness of the two bids, revolve around the question of adequate parking, the status of existing tenants in the buildings, a consideration required by the terms of the ITB, the question of adequacy of "dry and measurable" space, the question of "location" (including building appearance, appearance of the property, the character of the neighborhood, security issues, design or layout of the proposed space, and provision for future expansion).

   
   

   Petitioner's Responsiveness

   
   

3. The Petitioner's response to the ITB is deficient in terms of provisions for parking, as well as concerning the disclosure of the status of existing tenants in the Petitioner's building. The parking facilities offered by the Petitioner do not meet the requirements of the ITB. The ITB requires that 60 parking spaces be available for the exclusive use of the Department. Petitioner's Exhibit 1, Item 21 in evidence (the ITB) provides:

   
   

   For this facility, the Department has determined that a minimum of 60 parking spaces are required to meet its needs. Its parking is to be provided as part of a lease cost to the department. The lessor will grant to the lessee an exclusive right to use 60 parking spaces. Lessor shall

   submit with this bid submittal a letter certifying that the lessor agrees to the requested number of parking spaces on site, states the number of parking spaces per square foot of space as required by the local zoning jurisdiction and provides a site plan of the parking lot identifying the number

   of parking spaces assigned to specific other tenants. The purpose of this submittal is to assure parking spaces conform to local jurisdiction requirements

   of number and size, and that the number of parking spaces requested in this invitation can be achieved without infringing on or combining with the parking requirement of other tenants (emphasis contained in original document).

4. The Petitioner's bid submittal does not show spaces assigned to specific other tenants, as required by the ITB, and does not state the number of parking spaces per square foot of space required by the local zoning jurisdiction, which is the City of Daytona Beach, Florida. The Petitioner proposes to house the Department in two sections of an existing building. Those sections are presently occupied by other tenants. Other space within the building is also presently occupied and will continue to be occupied, even if the Department decides to lease the Petitioner's space at issue. The Petitioner's site plan shows that it has 92 spaces available to serve tenants in that building located on the building site. In addition to those spaces, the Petitioner proposes to use eight (8) additional spaces located off-site.

   
   

5. Certain space in the Petitioner's proposed building is presently leased to the Florida Department of Health and Rehabilitative Services (HRS). That lease will remain in effect even if the Petitioner leases the space at issue to the Department. Under that HRS lease, 29 spaces are committed to HRS on an exclusive basis, with six (6) other spaces on a non-exclusive basis. There is additional office space in the building presently occupied by private businesses, which totals 4,470 square feet. Under the City of Daytona Beach Code, the parking requirement for 4,470 square feet of commercial office space, in a building the size of the Petitioner's is 16 spaces.

   
   

6. The eight (8) parking spaces off the building site, proposed to be used by the Petitioner, are adjacent to and serve an existing building that also houses a private business. That building has 16 total parking spaces, including the eight (8) which the Petitioner is proposing to allocate to the agency, if the bid is awarded. The building contains 3,900 square feet. Under the City of Daytona Beach Code, it must have a minimum of 14 parking spaces for that square footage. If the Petitioner leased space to the Respondent, its total parking space requirement to serve all of its tenants, including the proposed office space, under the City of Daytona Beach Code, would be 125 spaces. Eighty-nine

   (89) of those spaces would be for the exclusive use of the Respondent and HRS. The Petitioner's site plan, however, reveals that only 108 spaces are available, including the spaces at the off-site location. Additionally, the existing parking spaces of the Petitioner, designed to serve handicapped persons, do not conform to the current City of Daytona Beach Code. Handicapped parking spaces are required by that Code to be 12 feet wide, with an additional five feet provided for access of handicapped persons. In order to meet this dimensional requirement, the Petitioner's need for parking spaces to accommodate all tenants, will increase by four (4) spaces. He will need a total of 129 spaces to accommodate all tenants, including the Department, should the bid be awarded. He has only 108 spaces available.

   
   

7. Mr. Weinberg testified on behalf of the Petitioner, to the effect that the parking lot could be re-configured in order to gain 13 more spaces. This did not include the four additional spaces that would be needed to properly accommodate the handicapped parking spaces to the requirements of the City of Daytona Beach Code. The Petitioner's bid submittal plan, however, does not reflect any site plan involving re-configuration of the parking area. Moreover, it was not established that the reconfiguration proposed by the Petitioner can be accomplished under the mandates of the City of Daytona Beach Code. If it could, the Petitioner would still not have sufficient spaces to meet the requirements in the ITB, as well as the requirements of existing tenant leases and code requirements, concerning parking spaces for relevant amounts of building square footage allocated to the various tenants.

8. The Petitioner's bid also does not meet the criteria of the ITB containing the status of existing tenants. The ITB requires that vendors provide information regarding the rights of existing tenants, including written documentation regarding their status, as that relates to the availability and the time of availability of the space proposed in the bid. The ITB provides, in pertinent part:

   
   

   Existing tenants: If the offered space or any portion thereof (including parking areas) is at present occupied or will be covered by an active lease(s) at the stated availability date, written documentation by the tenant indicating acknowledg- ment of the lessor's bid and ability to vacate premises by the proposed date or earlier to allow lessor's renovation work to be completed must be included with the bid submittal. If the existing tenants are on a month-to-month lease, the bidder must provide a letter of explanation of this condition.

   
   

   There are two existing tenants in the space which the Petitioner has proposed to lease to the Department. The Petitioner offered no written documentation from either tenant indicating acknowledgment of the bid and lessee's ability to vacate the premises. The only information which the Petitioner provided was for one of those tenants and that was not signed nor acknowledged by the tenant. No information was provided, as required by the ITB, as to the other tenant.

   
   

   Intervenor's Responsiveness

   
   

9. The Petitioner maintains that the Intervenor's proposed office space was not "dry and measurable" at the time the bid was submitted by the Intervenor. The Petitioner also contends that the Intervenor's bid does not meet the parking facility requirements of the ITB. The criteria in the ITB require a definition of "dry and measurable" space available and also contain provisions allowing the vendor time to complete the facility through renovation, etc., subsequent to the bid submittal, but prior to the occupancy time specified in the ITB. The ITB provides, on page 2 in the second paragraph:

   
   

   Space to be made available: 07-01-95 or within 182 days after notification of bid award, whichever occurs last.

   
   

   Under the heading, "Handicap Standards and Alterations", at page 4 of the ITB, the ITB provides:

   
   

   Lessor agrees that the demised premises now conform, or that, prior to lessee's occupancy, said premises shall, at the lessor's expense, be brought into conformance with the require- ments of Section 553.48, F.S., providing requirements for the physical handicapped and the requirement of public law 101-336, July 26, 1990, known as the "American With Disabil- ities Act of 1990.". . .

   The proposed space must be in an existing building or a building which is to be complete by July 1, 1995, and is 50 percent complete on the bid deadline submission. To be considered as existing, the entire space must be dry, fully enclosed, and capable of being physically measured, to determine net rentable square footage, at the time of bid submittal. Reno- vations to bring the facility into compliance with all applicable federal, state, and local

   codes and regulations and/or to meet with desired arrangements are permitted, if carried out in accordance with prescribed procedures:

   1. Bids offering multi-story or multi-level buildings must have all stories serviced by an elevator which meets the requirements of DCA accessibility manual . . . (emphasis in original).

      
      

10. The Intervenor's proposal meets these requirements. The facility proposed by the intervenor is in an existing building. "Dry and measurable" means that the facility has exterior walls and a roof and is at least enclosed enough as to not to become wet or to be wide open to the elements. The Intervenor's proposed building has exterior walls and a roof and is enclosed with windows and doors secured so that it would not get wet or be open. There is ample space within the Intervenor's existing building to determine the net rentable square footage and to ensure that the square footage being offered meets the bid specifications. In fact, measurement was undertaken by the Intervenor's representative, including its architect, and the space and site plans were made available to representatives of the Department, who were in a position to make the same measurements when they conducted a site visit of the premises.

    
    

11. The only part of the facility that was not dry and measurable at the time of bid submission was a proposed new elevator, and entrance space related to the elevator, which the Petitioner has proposed to construct in order to meet the "Americans with Disabilities Act" requirements. The elevator and related space needed to accommodate entrances into the second floor of the building by the elevator were not dry and measurable at the time of bid submission and were not required to be by the terms of the ITB. The express provisions of the ITB allow vendors to renovate facilities in order to meet government regulations "prior to lessee's occupancy." The vendor is not required to have the space ready for occupancy until July 1, 1995, or 182 days after notice of award, whichever is later. The Intervenor has committed to complying with these requirements of the ITB and will be subject to a penalty if it does not, should the bid be awarded. Thus, if the vendor is offering a multi-story building, it is not required to have a handicapped accessible elevator already in place and operating at the time of bid submission. It simply must be installed prior to the lessee's occupancy. Therefore, under the terms of the ITB referenced above, the elevator-related space would not be required to be part of the dry and measurable space computation submitted with the bid.

    
    

12. The Department agreed at the pre-bid conference that the 60 exclusive parking spaces it would require, as specified in the ITB, would meet the ITB criteria if within 1,000 feet of the building. In response to this criteria, the Intervenor offered most of the required spaces at the site of its building. It also offered to make spaces available at three other locations as alternatives. It offered to make 48 of the 50 spaces it has on its own building

    site exclusively available to the Department and also offered 21 parking spaces on "Lot B" or "Parcel B", as delineated in its bid. This lot is within 1,000 feet of the Intervenor's building, which was offered in the bid, and is approximately 350 feet away. It can accommodate the 21 parking spaces, but will necessitate a variance from zoning requirements, in order to place 21 spaces on Lot B. The ITB allows bidders 30 days from the date of any award to deal with such zoning issues and resolving any zoning problems. If this lot is used, the Intervenor will seek a variance in order to be able to put the 21 spaces on the lot. The Intervenor does not yet have the variance, but there is no evidence of record that would establish that it cannot be obtained from the City zoning authority. The Intervenor has an option to lease Lot B, where the 21 parking spaces would be located, and, therefore, has sufficient control of it.

    
    

13. Another alternative offered by the Intervenor is designated as "Lot A" or "Parcel A" in its bid. This lot is across an existing municipal parking lot from the Intervenor's facility being offered. It includes 69 parking spaces and is within 1,000 feet of the Intervenor's building. The Intervenor has secured this facility through an option to purchase. The only remaining step in order to purchase the lot would be for the Intervenor's board, responsible for the operation of its programs, including the building, to execute the option it has already entered into. This also constitutes sufficient control over the property to comply with the terms of the ITB. This parking lot and the spaces thereon meet the requirements of the ITB.

    
    

14. The third nearby lot, available to the Intervenor, is designated as "Parcel D" or "Lot D" on the Intervenor's bid documents. Additional spaces could be made available on this lot. It is 1,070 feet away from the Intervenor's building, however, and thus does not meet the 1,000-foot requirement set by the Department at the bidders' conference, in its interpretation of the specification concerning parking.

    
    

15. The demonstrated availability of the other parking areas and spaces, however, establishes that the Intervenor has sufficient parking available, within the required distance, to meet the terms of the ITB. Moreover, the Intervenor's building will house the office of the Intervenor, as well as the office of the Respondent/Department. The Intervenor's building is located directly adjacent to a free municipal parking lot. This lot would be available to employees of the Intervenor, as well as Intervenor's visitors, and as well as to employees of the Department and the Department's visitors, who, for whatever reason, might not use the exclusive dedicated parking spaces. Because it is in a downtown development area, the Intervenor is not required, under the City of Daytona Beach Zoning Code, to provide any parking for its building.

    
    

    Bid Evaluations

    
    

16. The Department received bid responses from the two parties and proceeded to evaluate them. The part of the evaluation based upon prices bid by the vendors was conducted by Department personnel in Tallahassee. The part of the evaluation based upon more subjective factors was conducted by three Department employees in Daytona Beach, who ultimately have to work in the facilities that the Department acquires through this procurement process.

    
    

17. The price evaluation was undertaken with the assistance of a representative of the Department of Management Services, who is familiar with statutory and rule requirements for a proper evaluation of bids. Price was apportioned 40 of the total 100 points available in the bid evaluation process.

    The price evaluation resulted in the Petitioner receiving 40 points because it had the lowest price of the two subject bids. The Intervenor received 33 points for the price criterion.

    
    

18. The three Department employees designated to evaluate the other aspects of the bid proposals conducted site visits at each of the vendors' facilities. During the site visits, the evaluators walked through the parking lots and counted the spaces, checked the exit door locations, inquired about heating, ventilation, and air-conditioning facilities and equipment, evaluated the condition of the buildings and how they were being maintained, checked security lighting and other security issues, checked on placement of the lobbies and how offices would be positioned, observed the availability of natural lighting and surveyed neighborhood conditions. Each evaluator then conducted evaluations based upon factors other than cost, without consulting each other. They used an evaluation form that relates to various criteria which come directly from the ITB. Upon completion of the evaluations, the completed forms were forwarded to the Tallahassee office of the Department.

    
    

19. The evaluation criteria allow three categories of evaluation under the general heading of "location". Ten points are allowed as a maximum in the category of "availability and frequency of public transportation within the proximity of the space being offered." The evaluators gave the Petitioner five, six and five points, respectively, for its response to this category. They gave the Intervenor seven, six and five points. Both facilities have public bus stops near the building which provide good access to public transportation. The Intervenor's facility is located within a few blocks of the transit transfer station, which offers the advantage that bus passengers will be able to get to the Intervenor's facility without the need of a transfer which could save them considerable time. The Department of Juvenile Justice is the type of state agency which has a great deal of business with clients and their family members of a lower-income status, who might frequently have to rely on public transportation.

    
    

20. Nine (9) points are allowed in the evaluation criteria for the category of "appearance of the building property and neighborhood of the property being offered," under the general heading of "location". The Petitioner was accorded three, five and four points, respectively, for its response to this category. The Intervenor was given nine, eight and seven points. This is admittedly a subjective criteria. The appearance of a facility and its surrounding area can make a difference in the morale and productivity of the working staff, as well as the attitude of visitors to the facility. The Intervenor's building is in a renovated, historic structure located in the historic preservation section of the downtown area of Daytona Beach. It has a great deal of aesthetic appeal and has been the subject of several newspaper articles noting the attractiveness and functionality of the renovation. The Petitioner's structure, on the other hand, although well-landscaped and maintained, is a metal, prefabricated building, not as aesthetically interesting or pleasing. It is also located adjacent to higher crime areas in the City.

    
    

21. The evaluation criteria allow for four points for the category of "security issues posed by the building and surrounding area" under the category of "location". The evaluators scored the Petitioner's response at two, two and one points for this subject. They scored the Intervenor's bid three, three and two points for the same category. It is apparent that the Petitioner's facility is located in an area which is somewhat crime-prone. While the evidence does not reflect any criminal activity on the Petitioner's site itself, at least one evaluator was intimately and personally familiar with the neighborhood and the

    criminal problems occurring there. This familiarity was confirmed by Department personnel from police reports showing the area to be a high-crime area.

    
    

22. Under the "facility" heading, the evaluation criteria and form allows points for four different categories. It allows 15 points for the category of "susceptibility of the design and space being offered to good utilization by differing segments of the Department." The evaluators gave the Petitioner seven, five and six points for their three evaluations of this response. They scored the Intervenor's submittal at 15, 12 and 10 points. The Intervenor's proposal offers a building that has windows on all four sides with abundant natural lighting, good visibility, and contiguous space. The Intervenor's facility can be very easily renovated into appropriate space for the different segments of the Department. The Petitioner's facility, on the other hand, has few windows, offers limited natural lighting and is not easily visible from the street. Additionally, the Petitioner offered divided space within its building so that some segments of the Department's work force would be physically separated from one another, with access between the two divided areas of office space being only obtainable by going outside the building and then in another door of another part of the building.

    
    

23. The evaluation form also allows 10 points for the category of "susceptibility of the building parking area and property as a whole for future expansion." The Petitioner received a score of three, five and five points for this category by the evaluators. The Intervenor's response received seven, eight and three points for the same category. The Petitioner's facility offers no opportunity for expansion unless existing lessees leave the building. There is no room for additional parking for expansion purposes. The Intervenor's facility has space on the first floor not being leased at all at the present time and a portion of the third floor could be enclosed to provide additional space. Further, since the only other tenant is the lessor, there is a prospect that the lessor itself might move to other facilities in order to accommodate Department expansion. Lot A offers considerably more parking spaces than the Department or other tenants of the Intervenor's building need. Furthermore, the Intervenor's facility is located adjacent to a free, municipal parking lot which is only moderately used.

    
    

24. Under the same general heading of "facility", the evaluation form and criteria allows ten points for the category of "having all the square footage in a single building will earn more points than square footage offered in more than one building." The Petitioner is offering space in a single building. However, the Petitioner's space would be divided so that the Department's office space would not all be contiguous, and personnel would have to go from one side of the building to the offices on the other side of the building only by going outside the building. This is functionally akin to space being in more than one building. Thus, the Petitioner's proposal would have some of the disadvantages of being like a proposal for more than one building. Workers would not be as readily able to assist one another in dealing with work loads or as easily undertaking many of the work activities requiring them to communicate with each other in each other's physical presence as easily as in a contiguous set of offices located in a single building. It is true that the Petitioner is proposing all of its space in one building. Thus, it meets the ITB criteria in this regard. It also can be argued as the Department evaluators found, that because the space functions akin to being in separate buildings, because of the separation of the offered office spaces, it should be evaluated as being somewhat analogous to space located in two separate buildings. Thus, although both bids were responsive to the ITB in terms of offering space physically and technically within a single building, it was not arbitrary for the evaluators to

    accord more weight to the Intervenor's response, since all of the office offered by the Intervenor is contiguous space in the same building. However, even if the evaluators had or should have ranked both bids equally under this "single building criteria", that alone would not alter the evaluators' result that the Intervenor's bid and facility was the best response to the agency's needs expressed in the ITB.

    
    

25. The evaluation criteria and form also allows a maximum of two points to be accorded to the category of "if space is offered in more than one building, are the buildings connected by overhangs and sidewalks," under the heading of "facility". The space offered by both bidders, the Petitioner and the Intervenor, is clearly in a single building. All of the evaluators gave both parties an equal two points for this category which shows a lack of arbitrariness in the bid evaluation process.

    
    

26. When the evaluation was complete, the Intervenor was accorded scores of 86, 82 and 72 points by the three evaluators. Two of the evaluators rated the Intervenor significantly higher, and the third favored the Petitioner's proposal by a single point. The total score given the Petitioner, taking into account its lower price, was 67, 71 and 73 points by the three evaluators. The total score accorded the parties by the three evaluators shows that the Intervenor's proposal was accorded a substantial advantage by two of the three evaluators. The evaluator scores were independently determined but were still generally consistent with each other. They were based upon logic and not merely upon a review of plans, figures, and written responses but also upon a detailed view of the two properties, parking spaces, and the like. Thus, it is determined that the scoring was consistent, logical, and not shown to be unreasonable under the circumstances. Based upon the scores by the evaluators, the Department determined that the Intervenor's bid was the lowest, best and most responsive and elected to award the lease to the Intervenor. There has been no preponderant proof offered to show that the decision or any of the evaluation decisions on individual categories, leading up to the ultimate score and decision to award, were fraudulent, arbitrary, illegal, or dishonest.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

28. A proceeding such as the instant one is an exception to the normal procedure of a de novo adjudication of disputes arising from an initial agency action, without a presumption of correctness given to that initial decision. In bid protest proceedings such as this, the role of the Hearing Officer is different and more limited. The Hearing Officer is not conducting a proceeding designed to determine what action an agency should taken without deference to the initial agency action, the type of proceeding outlined by the court in Florida Department of Transportation v. J.W.C. Company, 396 So.2d 778 (Fla. 1st DCA 1991). Contrarily, the Florida Supreme Court in Department of Transportation v. Groves-Watkins Constructors, 530 So.2d 912, 914 (Fla. 1988), described the Hearing Officer's function in this peculiar type of proceeding as follows:

    
    

    [A]lthough the APA provides a procedural mechanism for challenging an agency's decision to award or reject all bids, the scope of an 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.

    
    

    See, also, Moore v. Department of Health and Rehabilitative Services, 596 So.2d 759 (Fla. 1st DCA 1992).

    
    

29. The fact that a court or Hearing Officer may believe that an agency decision is erroneous or ill-advised and that reasonable persons may disagree with the result reached by the agency is not sufficient to justify overturning that decision. Department of Transportation v. Groves-Watkins Constructors, supra. at page 913; Liberty County v. Baxter's Asphalt and Concrete, Inc., 421 So.2d 505, 507 (Fla. 1982); Scientific Games, Inc. v. Dittler Brothers, Inc.,

    586 So.2d 1128, 1131 (Fla. 1st DCA 1991). In Scientific Games, the Hearing Officer's role was described as follows:

    
    

    The hearing officer need not, in effect, second guess the members of the evaluation committee to determine whether he and/or other reasonable and well informed persons might have reached a contrary result. Rather, a 'public body' has wide discretion in the bidding process and 'its decision, when based on an honest exercise' of the discretion, should not be 'overturned even

    if it may appear erroneous and even if reasonable persons may disagree'. . . . 'The hearing officer's sole responsibility is to ascertain whether the agency acted fraudulently, arbitrarily, illegally, or dishonestly'. [court's emphasis, citations omitted].

    
    

30. The responsiveness of the Petitioner's bid to the ITB was put at issue in the proceeding when the Petitioner filed a formal protest. Intercontinental Properties, Inc. v. Department of Health and Rehabilitative Services, 606 So.2d 380, 384 (Fla. 3d DCA 1992). The evidence establishes that the Petitioner's bid was not responsive to the ITB because it did not provide adequate information regarding parking facilities, because the parking facilities described in the Petitioner's bid response are not sufficient to meet the clearly-expressed requirements of the ITB and because the Petitioner did not include information required under the ITB regarding the complete status of existing tenants. In order to meet the specifications of the ITB concerning parking facilities and status of existing tenants, the Petitioner would need to change its bid by providing information not previously provided and by changing its site plan that was manditorily included as part of the bid submittal.

    
    

31. In order to insure competitiveness in the bid process, a bidder is not allowed to change its bid after bids have been opened, except to cure minor irregularities. Harry Pepper & Associates, Inc. v. City of Cape coral, 352 So.2d 1190, 1192 (Fla. 2d DCA 1978). A deviation from the provisions of an ITB and the bid response is allowable and deemed not a material deviation or irregularity that does not accord any competitive advantage to the bidder making the change, deviation or cure of the irregularity in terms of giving it a price or other competitive advantage. See, Robinson Electrical Company v. Dade County, 417 So.2d 1032 (Fla. 3d DCA 1982); Tropabest Foods, Inc. v. Department of General Services, 493 So.2d 50 (Fla. 1st DCA 1986); and International

    Business Machines Corporation v. Department of Health and Rehabilitative Services, 17 FALR 1129, 1139, 1140 (Final Order, Department of HRS, 1994). In the instant situation, if the Petitioner is not required to provide the same parking spaces as other bidders, it would, of course, have a competitive advantage over those other bidders. The other bidder in this proceeding, the Intervenor, was, by being responsive to the ITB, required to secure the needed parking facilities through contracts to lease or purchase the parking areas involved. There is obviously an expense in securing such facilities by option and later by lease and purchase, which are necessitated by the Intervenor committing to provide such in responding to the ITB and if awarded the contract. By designating fewer spaces than required in the ITB, the Petitioner would have less of a need to incur such expenses, according it a competitive advantage if it were not held to comply with the same parking space specification as the Intervenor has been held to.

    
    

32. Further, if the Petitioner is not required to notify its existing tenants within its building that it will be responding to the ITB, the Petitioner will be in a position to secure a financial advantage by securing tenants to fill and pay for its office space despite the fact that he is responding to the ITB because those tenants or prospective tenants will not know of it. Other bidders, in the meantime, in complying with this standard in the ITB (item 16), would be required to notify existing tenants and to suffer the financial consequences (through early vacancies) or other consequences of having these existing tenants become aware that their landlord is soliciting alternative tenants through response to the Department's ITB. This accords a competitive advantage and a potential financial advantage to the Petitioner by failing to meet this bid specification regarding notification to and responses from existing tenants. The financial advantage quite conceivably could be factored into the bid price proposed by the Petitioner. Consequently, this deviation from the ITB specification is a material one, as well, and not waivable. The Department or its predecessor agency in the past has viewed the failure to provide adequate parking and the failure to provide needed information regarding existing tenants as material defects in bid responses.

    See Intervenor's Exhibit F in evidence. A consistent policy followed by the agency would dictate that the same result would obtain in the instant situation. If the agency were to persist in deeming the Petitioner's bid responsive in the face of these deficiencies, it would be acting arbitrarily.

    
    

    Petitioner's Standing

    
    

33. All of those parties with a substantial interest determined by the Department have standing to challenge the contract award decision. Sections 120.53(5) and 120.57(1), Florida Statutes. The only entities having standing to challenge a bid award are those who can potentially be a party to a contract with the State. Fort Howard Company v. Department of Management Services, 624 So.2d 783 (Fla. 1st DCA 1993); Westinghouse Electric Corporation v. Jacksonville Transportation Authority, 491 So.2d 1238, 1240-41 (Fla. 1st DCA 1986). A bidder whose proposal is not responsive to material items of the ITB cannot be a party to a contract with the agency because it has not met the agency's specifications. Therefore, under the authority of these cases, such a petitioner would not have a substantial interest in the matter and thus would be unable to prove its standing to challenge the award of the contract, although such a Petitioner as Weinberg is entitled to an opportunity at hearing to adduce evidence to prove that standing, which opportunity was accorded in this case. Center for Independent Living v. Department of Health and Rehabilitative Services, DOAH Case No. 94-5627BID, at page 24 (Recommended Order entered on January 17, 1995); Final Order entered on February 21, 1995). It is the

    Petitioner's burden to establish that it has standing to initiate and maintain the protest proceeding. The Petitioner, by not proving its responsiveness in the above-found particulars, has failed to meet this burden. It has been shown that a conclusion that the Petitioner's bid is responsive would be arbitrary.

    Therefore, it must be found that the Petitioner does not have standing and that the protest should be dismissed.

    
    

    Responsiveness of Intervenor

    
    

34. The Petitioner maintains that the Intervenor's bid was not responsive. The Petitioner has the burden to establish that the determination by the Department as to responsiveness was fraudulent, arbitrary, illegal or dishonest according to the opinion in the Groves-Watkins, supra. decision cited above. See, also, Nobles, Varnum & Hodges v. Department of Natural Resources, 15 FALR 4584, 4591 (DEP 1993); Adlee Developers v. Department of Health and Rehabilitative Services, 14 FALR 4938, 4945-46 (DHRS 1992). In view of the above findings of fact, based upon the preponderant evidence of record, it has not been established that the Department's determination that the Intervenor's bid was responsive to the items in the ITB was fraudulent, arbitrary, illegal or dishonest.

    
    

    Bid Evaluation

    
    

35. It is the Petitioner's burden to establish that the Department's evaluation and determination that the Intervenor's bid was the lowest and best proposal was fraudulent, arbitrary, illegal or dishonest under the above-cited decisional authority. The evidence does not establish that. The evidence, rather, establishes that the Department based its evaluation on factors set forth in the ITB and conducted their evaluation of prices based on criteria established by the Department of Management Services based upon the "bid law", Chapter 287, Florida Statutes, and rules promulgated thereunder concerning such procurements. The Department based its determination and evaluation of issues from the ITB, other than price, on actual site visits conducted by personnel who were in the best position to understand the Department's needs based upon their knowledge of the criteria and specifications in the ITB. While reasonable persons might differ as to the point scores awarded by the evaluators in any given category, the evidence establishes that the evaluations were conducted honestly, rationally, and non-arbitrarily and were based upon the factors and specifications cited in the ITB.

    
    

36. The Intervenor maintains that a preference should be accorded to the Intervenor based upon its property being an historic preservation property, including being listed on the National Register of Historic Places. It maintains that State agencies are required to give preference to historic properties when they lease new facilities. Section 267.061(3), Florida Statutes, provides:

    
    

    Each state agency of the executive branch, in seeking to acquire additional space through new construction or lease, shall give preference to the acquisition or use of historic properties when such acquisition or use is considered feasible and prudent compared with available alternatives. The acquisition or use of historic properties is considered feasible and prudent if the cost of purchase or lease, the cost of rehabilitation, remodeling, or altering the

    building to meet compliance standards and the agency's needs, and the projected costs of main- taining the building and providing utilities and other services is less than or equal to the same costs for available alternatives . . . .

    
    

37. Although it has been established that the bid by the Intervenor represents the lowest, best and most responsive proposal obtained in the subject bidding process, the evidence is insufficient to establish whether the "historic property" preference should be accorded the Intervenor, as well. The various costs of rehabilitation, remodeling or altering, projected maintenance costs, utilities costs, and "other services" costs have not been established in order to make such a conclusion.

    
    

38. In summary, the Petitioner has failed to establish standing to maintain a bid protest proceeding, because the evidence adduced at hearing shows that it was non-responsive in the material categories referenced in the above Findings and Conclusions. The Petitioner has failed to establish that the determination to award a contract to the Intervenor was fraudulent, arbitrary, illegal or dishonest. Accordingly, the Petition should be dismissed.

RECOMMENDATION

Based on the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is

RECOMMENDED that a Final Order be entered by the Department of Juvenile Justice dismissing the Petitioner's formal protest because the Petitioner lacks standing to initiate the subject proceeding and because the Petitioner has failed to establish that the determination to award a contract to the Intervenor was fraudulent, arbitrary, illegal or dishonest.

DONE AND ENTERED this 15th day of June, 1995, in Tallahassee, Florida.

P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 15th day of June, 1995.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-1736BID

Respondent's and Intervenor's Proposed Findings of Fact

The proposed findings of fact of these two parties are accepted to the extent that they are not inconsistent with the findings of fact made by the Hearing Officer. Certain proposed findings of fact accepted as true are immaterial to the resolution of the issues presented.

Petitioner's Proposed Findings of Fact

A-F. Accepted.

1. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter, and as not entirely in accordance with the preponderant evidence of record.

2. Accepted.

3. Accepted, but not itself materially dispositive.

J.(1-3) Rejected, as not being entirely in accordance with the preponderant evidence of record, and as subordinate to the Hearing Officer's findings of fact on this subject matter.

K-L. Rejected, as not being entirely in accordance with the preponderant evidence of record, and as subordinate to the Hearing Officer's findings of fact on this subject matter.

M. Accepted, but not itself materially dispositive. N.(1-6-

Subparts) Rejected, as not entirely in accordance with the preponderant evidence of record, and as subordinate to the Hearing Officer's findings of fact on this subject matter.

1. Rejected, as not entirely in accordance with the preponderant evidence of record, and as subordinate to the Hearing Officer's findings of fact on this subject matter.

2. Accepted.

COPIES FURNISHED:

Calvin Ross, Secretary Department of Juvenile Justice 2737 Centerview Drive

Tallahassee, Florida 32399-3100

Mr. Robert Allan Weinberg RW Custom Builders, Inc. 955 Orange Avenue

Daytona Beach, Florida 32114

Scott C. Wright, Esquire Department of Juvenile Justice 2737 Centerview Drive

Tallahassee, Florida 32399-3100

G. Steven Pfeiffer, Esquire APGAR, PELHAM, ET AL.

909 East Park Avenue Tallahassee, Florida 32301

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit to the agency 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: 95-001736BID

Orders for Case No: 95-001736BID