STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WHARTON LITTLE RIVER INVESTMENT, ) INC., by PROCACCI COMMERCIAL )

REALTY, INC., its General Partner, )

)

Petitioner, )

)

vs. ) CASE NO. 95-1839BID

)

DEPARTMENT OF CORRECTIONS, )

)

Respondent, )

and )

)

GREEN-EAST, #2, LIMITED, )

)

Intervenor. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Susan B. Kirkland, held a formal hearing in this case on April 25, 1995, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Robert A. Sweetapple, Esquire

Sweetapple, Broeker & Varkas

465 East Palmetto Park Road Boca Raton, Florida 33432

For Respondent: R. Beth Atchison

Assistant General Counsel Department of Corrections 2601 Blair Stone Road

Tallahassee, Florida 32399-2500

For Intervenor: John Beranek, Esquire

MacFarlane, Ausley, Ferguson & McMullen

227 South Calhoun Street Post office Box 391 Tallahassee, Florida 32302

STATEMENT OF THE ISSUES

Whether the Department of Corrections' proposed award of Lease No. 700:0710 to Melstine Corporation was proper.

PRELIMINARY STATEMENT

From March 8, 1995 through March 13, 1995, Respondent, Department of Corrections (Department), posted a bid tabulation of bids received for Lease No. 700:0710. The bid tabulation indicated that the Department intended to award the lease to Melstine Corporation. On March 15, 1995, Petitioner, Wharton Little River (Wharton) filed a notice of intent to protest the award. On March 14, 1995, Wharton filed its formal notice of protest. The case was forwarded to the Division of Administrative Hearings on April 14, 1995 for assignment to a Hearing Officer. The case was scheduled for hearing on April 25, 1995. On April 21, 1995, Intervenor, Green East, #2, Ltd. (Green East) filed a Petition to Intervene.

At the final hearing Intervenor did not appear; however the Petition to Intervene was Granted.

At the final hearing, Petitioner called the following witnesses: Belkis Camacho, Michael E. Stevenson, Harold Adelman, Mary Goodman, Phillip Procacci, and Michael Colodny. Petitioner's Exhibits 1 and 2 were admitted in evidence.

At the final hearing, Respondent called Michael E. Stevenson and Belkis Camacho as witnesses. Respondent's Exhibits 1-9 were admitted in evidence.

On May 1, 1995, the transcript was filed. On May 1, 1995, Green East filed a Motion to Reopen Hearing and Alternative Motion to Stay Pending Appeal based on its failure to receive notice of the hearing. Wharton and the Department filed proposed recommended orders on May 11, 1995. Intervenor's motion was heard on May 12, 1995. The Motion to Reopen was granted and the hearing was scheduled to be reconvened on June 17, 1995. On May 16, 1995, the parties advised the Hearing Officer that the parties had agreed that Green East could submit certain exhibits and an affidavit in lieu of reconvening the formal hearing. The parties were given until May 26, 1995, to file proposed recommended orders or supplements or amendments to the proposed recommended orders previously filed.

Green East filed the affidavit of Myra Guzman and the following documents:

1. memorandum from Norman Jenkins to Maria Cortez dated March 6, 1995; 2) Attestation Conflict of Interest by Norman Jenkins dated March 6, 1995; 3) Bid evaluation form signed by Norman Jenkins; 4) Attestation Conflict of Interest by Jorge Gonzalez dated March 3, 1995; 5) Bid evaluation form signed by Jorge Gonzalez; 6) Attestation Conflict of Interest by Tony Harper dated March 6, 1995; 7) Bid evaluation form signed by Tony Harper; 8) Attestation Conflict of Interest by Wayne Riddlebarger dated March 6, 1995; and 9) Bid evaluation form signed by Wayne Riddlebarger.

   
   

   The parties timely filed proposed findings of fact and conclusions of law.

   On June 2, 1995, Wharton filed Petitioner's Motion to Strike Proposed Recommended Order of Green East #2, Ltd. Green East filed a Response to Motion to Strike on June 8, 1995. The motion to strike is Denied.

   
   

   The parties' proposed findings of fact are addressed in the Appendix to this Recommended Order.

   
   

   FINDINGS OF FACT

   
   

   1. The Respondent, Department of Corrections, Region Four (Department), issued a request for proposals for approximately 7,500 square feet of office

      space in Dade County which was designated as Lease No. 700:0710 (RFP). The office space was to be used as offices for the professional and support staff who were providing probation and parole supervision.

      
      

   2. Petitioner Wharton Little River (Wharton), Intervenor Green East #2, Ltd. (Green East), and Melstine Corporation (Melstine) submitted proposals to the Department.

1. The Department's evaluation committee evaluated the three proposals, and their evaluation included a site visit to each of the proposed locations.

   
   

2. Melstine Corporation received the highest number of points followed by Wharton Little River.

   
   

3. The Department notified all bidders of its intent to award the lease to Melstine.

   
   

4. On March 15, 1995, Wharton filed a notice of intent to protest the Department's decision to award the lease to Melstine. Wharton filed its formal written protest on March 14, 1995.

   
   

5. The RFP set forth the requirements for submitting a responsive proposal and the criteria to be used in evaluating the proposals. The bidders were required to provide 55 offstreet parking spaces for the exclusive use of the Department's employees and clients at no additional cost to the Department.

   This provision is interpreted to mean that the bidder could propose 55 exclusive parking spaces plus or minus one to two percent. The RFP provided spaces in which the bidders were to indicate whether they were proposing onsite or offsite parking.

   
   

6. The RFP also provides:

   
   

   Federal, state, county, and local laws, ordinances, rules, and regulations that in any manner affect the items covered herein apply. Lack of knowledge by the bidder will in no way be a cause for relief from respon- sibility.

   
   

   This provision is interpreted to include applicable zoning codes.

   
   

7. Both Melstine and Wharton proposed to provide 55 exclusive parking spaces onsite. Green East proposed 40 exclusive spaces and 20 nonexclusive spaces. The evidence did not establish whether Green East's spaces were onsite or offsite.

   
   

8. The evaluation criteria assigned a maximum number of points a bidder could receive for specific criteria. The maximum points totaled 100. The criteria for evaluating parking was the "[p]roximity of adequate parking area to the building. Must be well lighted." The maximum number of points that could be awarded to a bidder for parking was 10. Melstine received 10 points for parking.

   
   

9. The space proposed by Melstine is located on the ground floor of a six-story building with approximately 87,000 square feet. The building is currently vacant. Melstine is actively seeking to lease other portions of the

   building. In its proposal Melstine stated that its intention was to market the remaining space on the ground floor to the banking industry as a banking location.

   
   

10. There are 54 onsite parking spaces on the property proposed by Melstine. There is additional space onsite that could be converted to 20 parking spaces, bringing the total parking spaces available on the Melstine property to

1. There are approximately 50 offsite parking spaces available in a lot across the street from the building proposed by Melstine.

   
   

   1. Melstine provided a map in its proposal showing that the located property was located in a C-1, limited commercial, zone.

      
      

   2. By letter dated February 21, 1995, Phillip J. Procacci, advised the Department that he felt that the Melstine proposal did not meet the requirements of the RFP because the parking spaces did not meet the zoning code requirements of the City of Miami.

      
      

   3. Department staff contacted the City of Miami zoning officials and were advised that the parking proposed by Melstine was acceptable under the City of Miami's zoning regulations. The Department relied on the representations from the City of Miami that the Melstine property would be in conformance with the zoning code.

      
      

   4. By letter dated April 17, 1995, Juan C. Gonzalez, Acting Zoning Administrator, advised Melstine's agent that the parking on the Melstine site would be acceptable as meeting the zoning requirements for the City of Miami for office use without the need of providing additional spaces for existing office square footage. By letter dated April 24, 1995, Mr. Gonzalez further clarified the City of Miami's position on parking spaces assigned to individual tenants.

      
      

      While the code does mandate a certain amount

      of spaces to be provided on site for individual uses, the code is silent on how the parking will be assigned, therefore, the city does not become involved or regulates assignment of existing parking spaces.

      
      

   5. Region Four of the Department has not experienced a problem with lessors not providing adequate parking in the past.

      
      

   6. Melstine's proposal met the parking requirements of the RFP and complied with the City of Miami's zoning ordinance.

CONCLUSIONS OF LAW

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

   
   

2. The parties have stipulated that Wharton has standing to bring this protest and that Green East has standing to intervene.

   
   

3. The Florida Supreme Court in Department of Transportation v. Groves- Watkins, 530 So. 2d 912, 914 (Fla. 1988), set forth the role of the hearing officer in the review of an agency's decision to award or reject all bids.

   Thus, although the APA provides the procedural mechanism for challenging an agency's decision to award or reject all bids, the scope of the inquiry is limited to whether the purpose of the competitive bidding has been subverted.

   In short, the hearing officer's sole responsi- bility is to ascertain whether the agency acted

   fraudulently, arbitrarily, illegally, or dishonestly.

   
   

4. In Liberty County v. Baxter's Asphalt and Concrete, 421 So. 2d 505,

   507 (Fla. 1982), the court noted the strong judicial deference accorded an agency's decision in competitive bidding situations:

   
   

   1. public body has wide discretion in soliciting and accepting bids for public improvements and its decision, when based on an honest exercise of this discretion, will not be overturned by a court even if it may appear erroneous and even if reasonable persons may disagree.

   
   

5. The RFP called for the bidder to provide 55 exclusive onsite parking spaces. Melstine bid 55 exclusive onsite parking spaces. The physical property will allow for up to 74 onsite parking spaces; thus Melstine can provide 55 exclusive onsite parking spaces. Even if Melstine only provided 54 exclusive onsite parking spaces, it would still be within one to two percent of the required 55 spaces and, therefore, responsive.

   
   

6. The City of Miami has indicated that the parking will be within the zoning code and that the City does not become involved with a lessor's assignment of spaces to a particular tenant.

   
   

7. The fact that Melstine has agreed to allow the Department to have 55 exclusive parking spaces does not constitute a private action which increases the degree nonconforming characteristics of use as it relates to offstreet parking. Petitioner argues that the agreement for exclusive parking is in violation of Section 917.13 of the City of Miami's zoning code. A common sense reading of the code would indicate that parking spaces have not been reduced or eliminated by the proposed agreement to provide 55 exclusive onsite parking spaces. The number of existing spaces is still the same -- 54 spaces.

   
   

8. It is clear Mr. Gonzalez's letter to Mr. Stevenson dated April 24, that Mr. Gonzalez understood that an agreement to assign spaces to tenants was at issue and that such an agreement did not change his opinion.

   
   

9. Melstine's proposal is responsive to the RFP.

   
   

10. Wharton has failed to establish that the Department's proposed award to Melstine is arbitrary, capricious, fraudulent, illegal, or dishonest.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the bid protest of Wharton Little River, Investment, Inc.

by Procacci Commercial Realty, Inc. be dismissed and that Lease No. 700:0710 be

awarded to Melstine Corporation.

DONE AND ENTERED this 20th day of June, 1995, in Tallahassee, Leon County, Florida.

SUSAN B. KIRKLAND

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 20th day of June, 1995.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-1839BID

To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact:

Petitioner's Proposed Findings of Fact. (Proposed Recommended Order After Reopening of Hearing)

1. Paragraphs 1-3: Accepted in substance.

2. Paragraph 4: Accepted in substance as it refers to the parking criteria. The remainder is rejected as unnecessary.

3. Paragraph 5: Accepted in substance.

4. Paragraph 6: Accepted to the extent that Wharton received the second highest number of points.

5. Paragraphs 7-11: Accepted in substance.

6. Paragraph 12: Rejected as not supported by the evidence. There was no evidence that access to the parking lot from the Melstine property is owned by Melstine.

7. Paragraphs 13-22: Rejected as subordinate to the facts actually found.

Respondent's Proposed Findings of Fact.

1. Paragraphs 1-23: Accepted in substance.

2. Paragraphs 24-25: Rejected as subordinate to the facts found.

3. Paragraphs 26-28: Accepted in substance.

4. Paragraph 29: Accepted.

5. Paragraph 30: Rejected as subordinate to the facts found.

6. Paragraph 31: Accepted.

7. Paragraphs 32-34: Rejected as subordinate to the facts found.

8. Paragraphs 35-41: Accepted in substance.

Intervenor's Proposed Findings of Fact. (The paragraphs are unnumbered. Each paragraph will be addressed in the order it appears under the section entitled, "The Computation of Error.")

1. Paragraph 1: The first three sentences are accepted in substance. The fifth, sixth, and seventh sentences are rejected as subordinate to the facts found. The remainder is rejected as not supported by the greater weight of the evidence.

2. Paragraph 2: These adopted paragraphs are addressed above under Respondent's Proposed Findings of Fact.

3. Paragraphs 3-4: Rejected as subordinate to the facts found.

4. Paragraph 5: Rejected as a conclusion of law.

5. Paragraph 6: Rejected as not supported by the greater weight of the evidence.

COPIES FURNISHED:

R. Beth Atchison Assistant General Counsel

Florida Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-2500

Robert A. Sweetapple, Esquire Sweetapple, Broeker & Varkas

465 East Palmetto Park Road Boca Raton, Florida 33432

John R. Beranek, Esquire

227 South Calhoun Street Post Office Box 391

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: 95-001839BID

Orders for Case No: 95-001839BID