STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ALAN FELKER and ALAN TAYLOR, as )

an agent for ALAN FELKER, )

)

)

Petitioners, )

)

vs. ) Case No. 98-1985BID

)

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in Tallahassee, Florida on June 19, 1998, before Arnold H. Pollock, an Administrative Law Judge with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: David A. Theriaque, Esquire

909 East Park Avenue Tallahassee, Florida 32301

For Respondent: R. Beth Atchison, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-1049

STATEMENT OF THE ISSUE

The issue for consideration in this case is whether the Department’s withdrawal of its request for proposals on lease number 790.0068, of property located in Clearwater, Florida, was illegal, arbitrary, dishonest, or fraudulent.

PRELIMINARY MATTERS

By letter dated April 6, 1998, the Department of Business and Professional Regulation, (Department), advised D.C.S. Real Estate, Inc., that it was awarding to it lease number 790.0068, for property located in Clearwater, Florida, to be used as the Department’s local office for the Division of Alcoholic Beverages and Tobacco. A copy of this notice was also furnished to Petitioner who, on April 6, 1998, filed his protest of the Department’s award decision. The matter was thereafter forwarded to the Division of Administrative Hearings for appointment of an Administrative Law Judge to hear the protest, and a hearing was scheduled for June 8, 1998. Prior to the hearing, however, on June 1, 1998, the Department advised both Petitioner and the successful bidder, D.C.S., that it was withdrawing the request for proposal for this lease and re-bidding the proposal.

On June 3, 1998, counsel for the Department filed a Motion To Dismiss Petitioner’s Protest on the basis that, because the Department had withdrawn all bids, the protest was moot.

Petitioner objected, and on June 4, 1998, a hearing was held on the motion by telephone conference call attended by counsel for both parties and the undersigned. Subsequent to that hearing, the undersigned determined that the Department’s withdrawal of the request for proposal with the stated intention to re-bid the procurement constituted a rejection of all bids, an action which may be reviewed by an administrative law judge. Based on that

determination, the Motion To Dismiss was denied and a hearing was scheduled for June 19, 1998. This hearing ensued.

At the hearing, Petitioner presented the testimony of Alan Taylor, president of Elizabethan Development, Inc., a land and real estate investment company, who is also a licensed general contractor and a registered real estate broker. He is the agent for Alan Felker, one of the Petitioners herein. Petitioner also introduced Petitioner’s Exhibits 1 through 6. Respondent presented the testimony of Randall Baker, general services manager for the Department of Management Services’ Bureau of Real Property Management. Respondent also introduced Respondent’s Exhibit A.

A transcript of the proceedings was furnished. Subsequent to the receipt thereof, counsel for both parties submitted proposed Findings of Fact and written argument which have been carefully considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Sometime prior to February 18, 1998, the Department of Business and Professional Regulation issued a Request For Proposal for lease number 790.0068 for approximately 4,137 square feet of office space within a specified portion of Pinellas County, Florida. The lease was to be for a period of seven years, to begin on September 1, 1998, and to contain a provision for five one-year renewals thereafter. Bids were to be opened on

   March 24, 1998.

   
   

2. Only two proposals were received. One was from Dr. Alan Felker, a Petitioner herein, and the other was from D.C.S. Real Estate, Inc. At the opening, on March 24, 1998, both proposals were reviewed for responsiveness consistent with the requirements of the Department of General Services’ Real Property Leasing Manual, and an initial determination made that both were responsive. This initial review for responsiveness was not made in detail, however, but included only a check to see that all required documents and information areas were included. The leasing manual provides that in general, the agency soliciting bids for a lease has to accept the representations made by the bidder at face value. If a later check shows the representation was inaccurate, the lease provisions can be amended to conform to the facts as they exist. The Department of Management Services requires all properties to be checked for size conformity.

3. The office space offered by D.C.S. is currently occupied by the Respondent under a prior lease which was to expire and be replaced by the lease under proposal. Notwithstanding that the request for proposal called for approximately 4137 square feet of space, plus or minus three percent, (no less than 4,013 nor more than 4261 square feet, excluding rest rooms, mechanical rooms stairwells, etc.), a floor plan of the existing facility submitted with the proposal by D.C.S. reflected the existing offices encompassed 4102 net square feet, with the existing

   toilets outside the confines of the leased space. The request for proposal called for restrooms to meet the requirements of the Americans with Disabilities Act of 1990 and of Section

   553.604(12-13), Florida Statutes, dealing with accessibility by handicapped persons. Rest rooms to be provided must include, for men, one public and two staff water closets, one public and two staff urinals, and one public and one staff lavatory with mirror. The women’s facilities must include one public and two staff water closets and one each lavatory with mirror for the public and staff. The request for proposal was silent as to how these facilities were to be configured - whether separate facilities must be furnished for both the public and the staff, or whether both could be included in one facility.

4. By letter dated March 23, 1998, Daniel Slesser, president of D.C.S., sent the Department an amended floor plan for its facility proposing to cut two doors through from the existing facility to the area of the private ADA compliant rest rooms by taking a closet and a portion of an existing office and making hallways thereof. It is still impossible to tell, even from the amended floor plan, whether the public and staff rest facilities will be separate or combined.

5. Upon receipt of the bid package from the Department, Mr. Taylor went to the existing site provided by D.C.S. and measured the outside dimensions of the facility which D.C.S. represented as being 41.7 feet by 97.9 feet. His measurement,

   subtracting the thickness of the concrete block of the wall, the air space and the thickness of the sheet rock, reflected the interior width of the building to be 40.5 feet. Because he could not get into the building to measure, Mr. Taylor accepted D.C.S.’s length measurement of 97.0 feet. These two measurements reflected an interior square footage of 4,009 square feet or less, if the 97.9 foot length also were to be reduced by 9

   inches. This would result in less than the minimum 4,013 square foot area required.

6. Notwithstanding Mr. Taylor’s calculations, so much of this procurement file as related to the square footage of the property was forwarded for evaluation to Randall Baker, general services manager in the Department of Management Services’ Bureau of Real Property Management. Mr. Baker reviewed the floor plan submitted with the proposal, and based on the plan, accepting the given dimensions, arrived at an area of 4102 square feet. He could not say whether the dimensions he used were the inside or the outside dimensions.

7. According to Mr. Baker, a bid can be deemed unresponsive at or after bid opening. Square footage is an item which could render a bid non-responsive. From his review of the file, the plans submitted, Baker cannot tell if the dimensions given by

   D.C.S. are correct. However, when the Department withdrew its RFP on this procurement, the issue of square footage at this point became moot.

8. Mr. Baker also looked at the requirements for rest rooms contained in the request for proposals and concluded the documentation was unclear as to what the current landlord had to do regarding bathrooms. The Request for Proposal, at page 28 of the proposal package, states that if the current landlord is awarded the bid, he must provide private restrooms inside the office. The restroom requirements found in paragraph 16 of the

   request for proposal on page 21 thereof, are silent on the location of the facilities. Mr. Baker was of the opinion that if the page 28 requirements were pertinent to the current landlord, D.C.S., and the page 21 requirements applied to all other bidders, it would give an unfair advantage to the existing landlord. An independent review of those provisions results in the conclusion that the page 21 requirements are not at all clear as to their application.

9. In any case, after Mr. Baker reviewed the request for proposal, he concluded that it was not clear and he recommended that in the absence of a clarification, the Department reject all bids and re-bid the lease.

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case. Section 120.57(1), Florida Statutes.

11. Petitioners challenge the Department’s decision to reject all bids for this procurement. As the parties protesting the agency’s decision, Petitioners have the burden of proof to establish a proper ground for invalidating it. The standard of proof is by a preponderance of the evidence.

12. Section 120.57(3)(f), Florida Statutes, provides in pertinent part:

    In any bid-protest proceeding contesting an intended agency action to reject all bids, the standard of review by an administrative law judge shall be whether the agency’s

    intended action is illegal, arbitrary, dishonest, or fraudulent.

    
    

13. In the instant case, the Department, after opening and evaluating the two proposals submitted for this lease, decided that the terms of the request for proposals was not clear and could result in an unfair result. Review of the documentation indicates this was a correct determination.

14. The RFP gave notice to all prospective bidders that the Department reserved the right to reject all bids if it determined that to do so was the correct and appropriate thing to do under the circumstances of this procurement. Review of the evidence submitted in this case indicates a definite lack of clarity in the Department’s requirements for restrooms as contained in the specifications made a part of the RFP. There appears to be a conflict between the requirements for restroom facilities as outlined in paragraph 16 of the RFP, on page 21 of the package, and those contained in page 28 of the proposal. The Department’s witness contends that one set of requirements relates to the existing landlord and the other to the Petitioner. This creates an unfair situation since the parties are not being held to the same standard by the terms of the solicitation.

15. Since a fair application of the terms and requirements of the solicitation cannot be determined, it is appropriate for the Department to reject all proposals based thereon and re- solicit the procurement utilizing clear and unambiguous specifications which can be equitably applied to all respondents.

There is no evidence of any fraud, dishonesty, arbitrariness, or illegality.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Business and Professional Regulation enter a Final Order rejecting all proposals and that the Department thereafter re-advertise this procurement utilizing clear and unambiguous requirements.

DONE AND ENTERED this 11th day of August, 1998, in Tallahassee, Leon County, Florida.

ARNOLD H. POLLOCK

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6947

Filed with the Clerk of the Division of Administrative Hearings this 11th day of August, 1998.

COPIES FURNISHED:

David A. Theriaque, Esquire 909 East Park Avenue Tallahassee, Florida 32301

R. Beth Atchison, Esquire Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0700

Lynda L. Goodgame General Counsel

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0700

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 98-001985BID

Orders for Case No: 98-001985BID