STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

7925 WEST 2ND CORPORATION, )

)

Petitioner, )

)

vs. ) Case No. 99-3497BID

)

DEPARTMENT OF CORRECTIONS, )

)

Respondent, )

)

and )

) CAPITAL GROUP OF MIAMI, INC., )

)

Intervenor. )

__________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on October 28, 1999, by video teleconference at Fort Lauderdale, Florida, before Susan B. Kirkland, a designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Robert A. Sweetapple, Esquire

Sweetapple, Broeker & Varkas

165 East Boca Raton Road

Boca Raton, Florida 33432-3911

For Respondent: Obed Doceus, Esquire

Department of Corrections 2601 Blairstone Road

Tallahassee, Florida 32399-2500

For Intervenor: David A. Anthony, Esquire

Law Offices of David A. Anthony

916 Catalonia Avenue

Coral Gables, Florida 33134

STATEMENT OF THE ISSUE

Whether Respondent acted fraudulently, arbitrarily, illegally, or dishonestly in its proposed rejection of all bids received in response to Request for Proposals, Lease No. 700:0819.

PRELIMINARY STATEMENT

On May 10, 1999, Respondent, the Department of Corrections (Department), issued Request for Proposals, Lease No. 700:0819 (the RFP). Petitioner, 7925 West 2nd Corporation, and Intervenor Capital Group of Miami, Inc., submitted proposals in response to the RFP. By letters dated July 30, 1999, Petitioner and Intervenor were advised that the Department was rejecting their bids for deficiencies relating to parking spaces. Petitioner filed a protest, and the case was forwarded to the Division of Administrative Hearings for assignment to an Administrative Law Judge.

On September 7, 1999, Intervenor filed a Petition to Intervene, which was granted by order dated September 9, 1999. The final hearing was scheduled for September 17, 1999.

Respondent filed a Motion for Continuance on September 14, 1999, due to a hurricane warning in the area where the hearing was scheduled. The Motion was granted, and the final hearing

was rescheduled for October 28, 1999.

At the final hearing, Petitioner called Robert P. Harrison, III, as its witness. Petitioner's Exhibits 1-4 were admitted in evidence. Respondent called Audwyn Francis as its witness. Respondent's Exhibits 1 and 2 were admitted in evidence. Intervenor did not call any witnesses or submit any exhibits.

At the final hearing, the parties agreed to file proposed recommended orders within ten days of the filing of the transcript. On December 23, 1999, the Transcript was filed.

On January 19, 2000, the parties filed a Joint Motion to Enlarge Time to File Proposed Recommended Orders. The Motion was granted, and the time for filing proposed recommended orders was extended to January 31, 2000. Petitioner and Respondent timely filed their proposed orders, which have been considered in rendering this Recommended Order.

FINDINGS OF FACT

1. On May 10, 1999, the Respondent, Department of Corrections (Department), issued Request for Proposal, Lease No. 700:0819 (the RFP) for office space in Dade County for the Office for Probation and Parole Supervision.

2. Petitioner, 7952 West 2nd Corporation, and Intervenor, Capital Group of Miami, Inc. (Capital), submitted the only responses to the RFP.

3. Upon receipt of the proposals, Mr. Audwyn Francis, the Department's employee in charge of the RFP, believing the bids to be nonresponsive, contacted the Department's legal section for advice and for a determination of responsiveness.

   
   

4. While waiting for the legal section to research and make a recommendation on the responsiveness of the proposals, because of time constraints, Department staff decided to proceed with the site visits and evaluation of the proposals but not to make an award until they received a decision from legal counsel concerning the responsiveness of the proposals.

5. A site visit was conducted at the two proposed sites.

   
   

   The responses were evaluated according to the criteria in the RFP. Capital received a score of 98. 7925 West 2nd Corporation received a score of 92. The evaluation committee recommended that an award be made to Capital.

6. Upon further review of the proposals by the Department's attorneys, it was determined that all of the bids were nonresponsive. Based on this determination, the Department rejected all bids.

7. On page four, section A, paragraph seven, the RFP provides the following requirements relating to parking:

   A minimum of 50 on-site spaces for the exclusive use of the employees and clients at no additional charge to the leasee.

   Parking spaces must be under the control of

   the bidder and be suitably paved, lined, bumper pads installed, and labeled D.C. parking. At least two spaces must meet the requirements of the Accessibility Requirements Manual published by the Department of Community Affairs, latest edition. Parking area shall be well lighted and secure.

   
   

   Bidder shall provide a site plan identifying the number of parking spaces assigned to specific other tenants. The purpose of this submittal is to assure parking spaces requested in this RFP can be achieved without infringing on or combining with the parking requirements of other tenants.

   
   

8. At the preproposal conference, Mr. Francis, advised the attendees that all attachments as indicated on pages 29 through 31 of the bid package must be included with the bid submittal. On page 30 the RFP requires the proposers to show proof of structures and parking control and directs the proposers to page 4, section A, paragraph 7 and page 23, section D, paragraph 7.

9. Capital proposed to provide 43 parking spaces on-site and 7 parking spaces across the street. Capital's proposal was not responsive to the requirement of providing 50 parking spaces on-site.

10. Petitioner included a document entitled "As-Built Survey" with its proposal. The survey showed the outline of the building on the site, but did not show any parking spaces. Petitioner stated in its proposal that it would provide 50

    parking spaces.

    
    

11. When Department staff arrived at Petitioner's site to conduct a site visit, they could not find a place to park. During the site visit, Robert Harrison, a representative of Petitioner, advised Department staff that Petitioner leased office space to another agency in the same building that was being offered to the Department. Mr. Harrison advised that he did not know the number of parking spaces to which the other agency was entitled to use. None of the parking spaces at the site were marked as being assigned to any tenant. As of the date of the Department's letter advising that it was rejecting all bids, Department staff were unaware of the total number of spaces available on the site and the number of spaces to which the other agency had exclusive use.

12. After all the bids were rejected, Petitioner disclosed that it had a lease with the Department of Health and Rehabilitative Services (HRS) for space in the building in which it proposed to lease space to the Department. The lease provided that HRS had exclusive use of 150 parking spaces on- site. Petitioner further disclosed that it had a total of 250 parking spaces on-site.

13. Petitioner failed to comply with the requirement that the proposer provide a site plan showing the number of spaces assigned for the use of the current tenant at the

    building.

    
    

14. The Department utilizes a manual entitled "Competitive Proposals," which establishes the procedures to solicit and evaluate proposals. Section Seven of the manual pertains to the procedures to be followed by the Department when evaluating proposals and provides:

    1. All proposals will first be reviewed for conformance with the provisions specified in the RFP. Any proposal not in compliance with the terms of the proposal specifications shall not receive further consideration. The evaluation committee will analyze each responsive proposal to determine which proposal is the lowest and best in accordance with established provisions and award factors. . . .

    2. To be considered for award, a proposal must comply in all material respects with the RFP so that all proposers may stand on equal footing, with respect to the method and time frame of submission, and to the substance of any resulting lease. The proposal must result in a binding contract.

    3. Non-responsive proposals.

       1. Any proposal which fails to substantially conform to the requirements of the Request for Proposal.

       2. A proposal may not be considered if the proposer imposes conditions which would modify requirements of the Request for Proposal, or limit their liability to the State of Florida, giving them an advantage over other proposers.

       3. When a question of responsiveness is unclear the agency's legal counsel should be consulted.

    4. In the event no acceptable proposals are received, all proposal should be formally rejected by letter, sent by certified mail, return receipt requested.

       
       

       * * *

       
       

       F. Proposals which technically conform to the requirements of the Request for Proposal are considered to be responsive and may be accepted for consideration by the evaluation committee for determination of an award recommendation. The evaluation committee can seek clarifications as needed from any proposer. However, clarifications received from the proposer which change what was originally proposed cannot be considered in the evaluation.

       
       

       * * *

       
       

       1. Each committee member is to personally inspect the proposed facility, and evaluate the location and facility on the basis of the evaluation criteria contained in the specifications.

       2. When all committee members have individually assessed award factor points for each proposal, the entire evaluation committee will meet to review the individual evaluations and jointly develop a committee determination of the best proposal based on the overall factor ratings.

       
       

       * * *

       
       

       L. The agency has the right to reject any and all proposals when such rejection is in the best interest of the State of Florida. Such rejection cannot be arbitrary, but must be based on strong justification. Each person with a rejected proposal should be notified by certified mail return receipt requested.

       
       

       CONCLUSIONS OF LAW

       
       

15. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of

    this proceeding. Sections 120.57(1) and (3), Florida Statutes.

16. Subsection 120.57(3)(f), Florida Statutes, provides:

    
    

    In a competitive-procurement protest, no submissions made after the bid or proposal opening amending or supplementing the bid or proposal shall be considered.

    Unless otherwise provided by statute, the burden of proof shall rest with the party protesting the proposed agency action. In a competitive-procurement protest, other than a rejection of all bids, the administrative law judge shall conduct a de novo proceeding to determine whether the agency's proposed action is contrary to the agency's governing statutes, the agency's rules or policies, or the bid or proposal specifications. . . . In any bid-protest proceeding contesting an intended agency action to reject all bids, the standard or review by an administrative law judge shall be whether the agency's intended action is illegal, arbitrary, dishonest, or fraudulent.

    
    

17. The Department's procurement manual specifically states that if it is unclear whether the proposals are responsive, the issue should be referred to the legal department. There was a question concerning the responsiveness of the proposals, and the matter was referred to legal staff. Because of time constraints, Department staff moved forward with the site visit and evaluation. Petitioner argues that because the Department evaluated the proposals while its legal counsel was researching the issue of whether the proposals were responsive, the Department is now precluded

    from determining that the proposals were nonresponsive. Petitioner's argument is without merit. If Petitioner's argument were true, the Department could never correct an error that it may have made in determining whether a proposal was responsive once it evaluated the proposals. It was not arbitrary for the Department to do the site visit and evaluation while waiting for a reply from its attorneys. No award was to be made until a response was received from counsel.

18. Petitioner argues that it had not assigned any spaces to its current tenant because no parking spaces were marked with the tenant's name; thus, it did not have to include a site plan showing parking spaces which were to be used by other tenants. Again Petitioner's argument is in error. The RFP clearly states that the purpose of submitting a site plan of the parking spaces is to make sure that the Department's parking requirements can be met without infringing on or combining with the parking requirements of other tenants. When Department staff arrived to conduct the site visit, they had difficulty in finding a parking space. Mr. Harrison advised Department staff at the site review that another agency had use of parking spaces, but he was unable to say exactly how many spaces they could use. Whether parking spaces had the current tenant's name on them or not is

    irrelevant, the tenant was entitled to exclusive use of a certain number of parking spaces. Thus, it was impossible for the Department to determine whether Petitioner had sufficient parking spaces available to meet the requirements of the RFP without infringing on or combining with the parking spaces of the current tenant.

19. Petitioner argues that there is no requirement on pages 29 through 31 of the RFP that a site plan for parking be attached to the proposal submittal. Page 30 requires proof of parking control and refers the proposers to page 4, section A, paragraph 7, which requires a site plan for parking if there are parking spaces assigned to other tenants. Thus, Petitioner was required to provide a site plan identifying the number of parking spaces assigned to other tenants.

20. The Department has wide discretion in rejecting all bids. When its decision is based on an honest exercise of discretion, it should not be overturned even if it may appear erroneous or even if reasonable persons may disagree with the decision. Department of Transportation v. Groves-Watkins Constructors, 530 So. 2d 912, 913 (Fla. 1988). The Department's decision was based on an honest exercise of discretion. There was no attempt to defeat the purpose or effect of the competitive bidding process.

21. The Department's decision to reject all bids was not

    arbitrary. "An arbitrary decision is one not supported by facts or logic, or despotic." Agrico Chemical Co. v. State, Dept. of Environmental Regulations, 365 So. 2d 759, 763 (Fla. 1st DCA 1978). Capital's bid did not provide for 50 on-site parking spaces, and Petitioner failed to demonstrate that it had sufficient spaces on site to meet the 50-space requirement. All bids were rejected because neither bid was responsive.

22. Petitioner has failed to establish that the Department's rejection of all bids was illegal, arbitrary, dishonest or fraudulent.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED a final order be entered dismissing Petitioner's protest.

DONE AND ENTERED this 29th day of February, 2000, in Tallahassee, Leon County, Florida.

___________________________________

SUSAN B. KIRKLAND

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) 921-6847 www.doah.state.fl.us

Hearings

Filed with the Clerk of the Division of Administrative

this 29th day of February, 2000.

COPIES FURNISHED:

Michael W. Moore, Secretary Department of Corrections 2601 Blairstone Road

Tallahassee, Florida 32399-2500

Louis A. Vargas, General Counsel Department of Corrections

2601 Blairstone Road

Tallahassee, Florida 32399-2500

Obed Dorceus, Esquire Department of Corrections 2601 Blairstone Road

Tallahassee, Florida 32399-2500

Robert A. Sweetapple, Esquire Sweetapple, Broeker & Varkas

165 East Boca Raton Road

Boca Raton, Florida 33432-3911

David A. Anthony, Esquire

Law Offices of David A. Anthony 916 Catalonia Avenue

Coral Gables, Florida 33134

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

10 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: 99-003497BID

Orders for Case No: 99-003497BID