STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ALAN TAYLOR, )

)

Petitioner, )

)

vs. ) CASE NO. 95-5623BID

) DEPARTMENT OF REVENUE, )

)

Respondent. )

)

RECOMMENDED ORDER

Final hearing was held in Tallahassee, Florida, on November 30, 1995, before Robert E. Meale, Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

The parties were represented at the hearing as follows: For Petitioner: Rebecca A. O'Hara

G. Steven Pfeiffer

Apgar, Pelham & Pfeiffer 909 East Park Avenue Tallahassee, Florida 32301

For Respondent: Tom Barnhart

Assistant General Counsel Office of General Counsel Post Office Box 6668

Tallahassee, Florida 32314-6668 STATEMENT OF THE ISSUE

The issue in this case is whether Respondent's intent to award a lease contract to Gulf Atlantic is fraudulent, arbitrary, illegal, or dishonest.

PRELIMINARY STATEMENT

Respondent received two bids in response to an invitation to bid for leased office space in Naples. Respondent determined both bids to be responsive and awarded the bid to Gulf Atlantic.

Petitioner timely filed a notice of protest and formal written protest. On November 21, 1995, Respondent referred the matter to the Division of Administrative Hearings for assignment of a hearing officer to conduct a formal hearing.

At the hearing Petitioner called three witnesses and offered into evidence eight exhibits. Respondent called three witnesses and offered into evidence one exhibit. All exhibits were admitted.

Neither party ordered a transcript. Rulings on timely filed proposed findings of fact are in the appendix.

FINDINGS OF FACT

1. By Invitation to Bid for Existing Facilities, Lease Number 730:0181 (ITB), Respondent invited interested persons to submit bids for the lease of office space in Naples.

   
   

2. The ITB requires the bidder to submit various documentation with the bid. The ITB states: "In order for a bid to be accepted, the items 1 through 8 must be included in the bid proposal." Items 4 demands: "Floor Plan showing present layout with dimensions. See paragraph 9b of Bid Submittal Form." Item 5 requires "Square footage calculations. See paragraph 9c of Bid Submittal Form."

   
   

3. The ITB adds: "Items 9 through 17 must be included, if applicable." Item 12 is "Authorization for corporation to conduct business in Florida." Item

   13 is a "Certification Letter from an HVAC maintenance contractor on age and condition of system."

   
   

4. The ITB includes a Bid Submittal Form in blank, which each bidder was to complete in order to submit a bid. Paragraph 1 of the Bid Submittal Form states:

   
   

   Net square footage required: 6,442+ 3

   percent, (acceptable range 6,442 to 6,635 square feet) measured in accordance with the Standard Method of Space Measurement

   (Attachment A). Note: Rest rooms and mechanical rooms are not included in calculating net rentable square footage.

   
   

   BIDDER RESPONSE: Net square feet proposed

   . (Space offered must be within the 3+ percent required.)

   
   

5. Paragraphs 9b and 9c of the Bid Submittal Form provide:

   
   

   As part of the bid submittal, bidders are to provide:

   b) A scaled (1/16" or 1/8" or 1/4" = 1'0" preliminary floor plan showing present configurations with measurements. The final floor plan will be as described in the specifications.

   c) A scaled site layout showing present location of building(s), location, configura- tion and number of parking spaces assigned to the Department, access and egress routes and proposed changes. This is to be drawn to scale. Final site layout will be a joint effort between the Department and Lessor, so as to best meet the needs of the Department.

6. In response to the ITB Petitioner timely submitted a bid for 6635 net rentable square feet. Petitioner's bid contained all required scaled plans. In response to Item 13 Petitioner's bid stated that all air conditioning units would be replaced with specified units, thus rendering Item 13 inapplicable. Respondent determined that Petitioner's bid was responsive and conceded the same at the hearing. Respondent correctly characterized as a minor irregularity the omission of documentation of Petitioner's corporate status because the omission gave Petitioner absolutely no competitive advantage.

   
   

7. The only other bid submitted in response to the ITB was from Gulf Atlantic, which was for office space in the vicinity of the office space bid by Petitioner. Respondent also determined the timely submitted Gulf Atlantic bid to be responsive. Although charging more rent than the rent charged in Petitioner's bid, the Gulf Atlantic bid narrowly defeated Petitioner's bid in the evaluation process by 10.5 points out of a total of 377.5 points. Accepting the recommendation of the evaluators, Respondent published its notice of intent to award the bid to Gulf Atlantic, and Petitioner timely filed its notice of intent to protest and written protest.

   
   

8. The Gulf Atlantic bid was for "+/-6,442" square feet. The attached floor plans are not correctly scaled. Careful analysis of the floor plans reveals that the actual square footage of the bid space is well under 6442 square feet. As confirmed by Gulf Atlantic's representative on the morning of the hearing, the Gulf Atlantic bid is for 5757.6 net rentable square feet. The Gulf Atlantic bid also lacks the required HVAC certification.

   
   

9. The shortage of nearly 700 square feet of office space and the absence of an HVAC certification letter are material variances from the ITB. Both items confer upon Gulf Atlantic substantial competitive advantages by allowing it to bid substantially less office space than required of other bidders and allowing it to ignore the requirement of a representation as to the working condition of the HVAC system. These material variances render the Gulf Atlantic bid unresponsive.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the subject matter. Sections 120.53(5) and 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes.)

    
    

11. In a bid protest, "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, 914 (Fla. 1988).

    
    

12. There is no evidence of fraud or dishonesty on Respondent's part in awarding the contract to Gulf Atlantic. It is unnecessary to consider the question of arbitrariness; the award is illegal because the Gulf Atlantic bid was unresponsive. The Gulf Atlantic bid was for too little space and lacked a necessary certification for the HVAC system. These were material variances from the ITB that could not be lawfully disregarded by Respondent.

13. On the other hand Petitioner's bid was responsive. It offered the correct amount of space and rendered the HVAC certification inapplicable by a representation that new air conditioning equipment would be installed. The shortcoming as to corporate status was a minor irregularity because it conferred no competitive advantage on Petitioner.

    
    

14. Respondent should award the contract to Petitioner because Petitioner submitted the only responsive bid, the rental rate was less than the rate contained in the previously accepted Gulf Atlantic bid, Petitioner's office space is in the same area as Gulf Atlantic's office space, and Petitioner's bid earned almost the same number of points as Gulf Atlantic's bid. A recommendation that Respondent accept Petitioner's bid therefore does not require that the hearing officer evaluate the bids de novo, but instead merely preserves the integrity of the bidding process. Hubbard Construction Co. v. Department of Transportation, 642 So. 2d 1192 (Fla. 1st DCA 1994) (per curiam).

RECOMMENDATION

It is

RECOMMENDED that the Department of Revenue enter a final order rejecting the bid of Gulf Atlantic as nonresponsive and awarding the lease contract to Petitioner based on its bid.

ENTERED on December 20, 1995, in Tallahassee, Florida.

ROBERT E. MEALE, 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 December, 1995.

APPENDIX

Rulings on Petitioner's Proposed Findings

1 (first two sentences): adopted or adopted in substance. 1: (remainder): rejected as irrelevant.

2: adopted or adopted in substance. 3: rejected as irrelevant.

4: adopted or adopted in substance.

5: adopted or adopted in substance, except as to dishonest.

6 (first two and fourth sentences): adopted or adopted in substance.

6 (third sentence): rejected as unsupported by the appropriate weight of the evidence as to intentional disregard of the minus sign.

7: adopted or adopted in substance. 8-16: rejected as subordinate.

17: adopted or adopted in substance with a further reduction for mechanical space.

18: rejected as subordinate.

19-20: adopted or adopted in substance, except as to dishonest and with the addition of illegal.

21-22: rejected as subordinate. 23-26: rejected as unnecessary.

27-32: adopted or adopted in substance. 33-45: rejected as unnecessary.

46: rejected as repetitious.

47: adopted or adopted in substance. Rulings on Respondent's Proposed Findings

1 (first sentence): adopted or adopted in substance.

1 (remainder): rejected as irrelevant.

2-6 (first sentence): rejected as unnecessary.

6 (second sentence)-9: adopted or adopted in substance.

10(a): adopted or adopted in substance as to Petitioner; rejected as unsupported by the appropriate weight of the evidence as to Gulf Atlantic.

10(b) (first sentence): adopted or adopted in substance as to Gulf Atlantic; rejected as unsupported by the appropriate weight of the evidence as to Petitioner.

10(b) (second sentence): rejected as unsupported by the appropriate weight of the evidence; the determination that the Gulf Atlantic bid was responsive was illegal.

11(a) (first sentence): adopted or adopted in substance as to Gulf Atlantic; rejected as unsupported by the appropriate weight of the evidence as to Petitioner. The same ruling applies to the third sentence insofar as it applies to Gulf Atlantic; the omission of an HVAC certification from the Gulf Atlantic bid was not a minor irregularity.

11(a) (remainder except for third sentence as to Gulf Atlantic): adopted or adopted in substance.

11(b): adopted or adopted in substance as to Gulf Atlantic; rejected as unsupported by the appropriate weight of the evidence as to Petitioner.

12-13 (first sentence): rejected as unsupported by the appropriate weight of the evidence.

13 (remainder)-14: rejected as unnecessary. The only determination by Respondent of the Gulf Atlantic bid that is crucial to this recommended order is the illegal determination that the Gulf Atlantic bid was responsive.

COPIES FURNISHED:

Larry Fuchs, Executive Director Department of Revenue

104 Carlton Building Tallahassee, FL 32399-0100

Linda Lettera, General Counsel Department of Revenue

204 Carlton Building Tallahassee, FL 32399-0100

Rebecca A. O'Hara

G. Steven Pfeiffer Apgar, Pelham & Pfeiffer 909 East Park Avenue Tallahassee, FL 32301

Tom Barnhart

Assistant General Counsel Office of General Counsel

P.O. Box 6668

Tallahassee, FL 32314-6668

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 10 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: 95-005623BID

Orders for Case No: 95-005623BID