STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MORE FINANCIAL SERVICES, INC., )

a corporation organized under ) the laws of Florida, )

)

Petitioner, )

)

vs. ) Case Nos. 00-2311BID

) 00-2312BID

BROWARD COUNTY SCHOOL BOARD, )

)

Respondent. )

)

RECOMMENDED ORDER OF DISMISSAL

These cases are before the undersigned on a Motion to Dismiss filed by the Respondent. The motion argues that the petitions in these consolidated cases should be dismissed on the basis that the Petitioner lacks standing in both cases. The Petitioner has filed an extensive Memorandum of Law in Opposition to Respondent's Motion to Dismiss. Oral argument was heard on the motion by means of telephone conference call on June 22, 2000.

The issues in these cases are almost identical to those presented in Systems, Controls and Services, Inc. v. St. Johns Water River Management District, DOAH Case No. 92-3385BID (Recommended Order of Dismissal issued June 15, 1992). There the administrative law judge wrote:

This cause came before the undersigned on respondent's motion to dismiss petitioner's formal written protest. As a ground, respondent contends petitioner lacks standing to protest the agency's decision to reject all bids filed in response to Invitation For Bid (IFB) 91G190. A memorandum in opposition to the motion has been filed by petitioner.

The facts in this matter are not in dispute. On an undisclosed date, respondent invited prospective bidders to file responses to IFB 91G190, which called for the successful bidder to perform "HVAC Renovations" on respondent's administration building. Bid proposals were filed by Bill Williams Air Conditioning and Heating, Inc. (Bill Williams) and at least one other vendor. Petitioner concedes it did not file a bid proposal but rather was listed as one of the subcontractors in both the proposal of Bill Williams and the other vendor. On or about May 6, 1992, respondent issued its notice of intention to reject all bids.

Thereafter, petitioner filed a formal written protest contending that the agency erred by not awarding the contract to Bill Williams. Respondent's motion to dismiss is directed at this filing.

A party has standing to protest an agency's rejection of all bids only if that party has a substantial interest to be determined by the agency. Westinghouse Electric Corporation v. Jacksonville Transportation Authority, 491 So. 2d 1238,

1240 (Fla. 1st DCA 1986); Subsection 120.53(5)(b), Florida Statutes (1991). Absent extraordinary circumstances, a non- bidder does not have standing to challenge the agency's action. Westinghouse at 1241. Cf. Rubber Millers, Inc. v. United States,

596 F. Supp. 210 (D.C. 1984)(non-bidding subcontractor lacks standing under federal zone of interest analysis to challenge bid solicitation).

Petitioner can, of course, allege some degree of economic injury occasioned by the rejection of the bids in which it is listed as a subcontractor. However, it is clear that the interest which it seeks to vindicate is not within the zone of interest protected or regulated by the controlling statutes. This is because the relevant statutes are generally designed to protect the interests of persons having the authority to enter into contracts with governmental entities to provide materials and services pursuant to the specifications of the IFB. Petitioner does not fall within this class of protected persons. Even so, under the rationale of Westinghouse, a non- bidder may still have standing to file a bid protest if exceptional circumstances are shown to be present. Without such a showing, a non-bidder's interests would not rise to the level necessary to be considered substantial and thus convey standing on that person. In this case, petitioner has merely alleged that it was a listed subcontractor in the bid document who would provide "a portion of the work" on the project. This allegation can hardly be considered to constitute the required extraordinary circumstances necessary to convey standing. Finally, it should be noted that if this result were not reached, virtually any non- bidding person who expected to provide a material or service to a prospective bidder, including those not listed as subcontractors, would have standing to participate fully as a party in cases such as this. Such a result would be inconsistent with the intent of the law and would serve to unfairly impede an agency's right to conduct an orderly, expedited bidding process. This being so, the motion to dismiss is hereby GRANTED. Since there appears to be no viable theory under which petitioner could demonstrate standing, the dismissal should be with prejudice.

The material facts in these consolidated cases are not disputed, nor are they remarkably different from the facts presented in Systems, Controls and Services, quoted above. Here the Petitioner was not a bidder in either case. Here the Petitioner is listed as a subcontractor by at least one unsuccessful bidder in each of these two proceedings. Here none of the unsuccessful bidders filed a bid protest. Since the decision in Systems, Controls and Services, there have been no

significant changes in the applicable statutes or in the applicable case law. The Petitioner argues that Advocacy Center for Persons with Disabilities v. State, Department of Children and Family Services, 721 So. 2d 753 (Fla. 1st DCA 1998),

represents a major change in the scope of standing in bid protest proceedings. In the view of the undersigned, Advocacy Center is not a departure from earlier decisions, but merely an

application of the older legal principals to a new set of facts Here, for the same reasons as in Systems, Controls and

Services, the motion to dismiss should be granted. Accordingly, it is RECOMMENDED that the Respondent enter a final order dismissing the petitions in both of these consolidated cases for lack of standing

DONE AND ENTERED this 26th day of June, 2000, in Tallahassee, Leon County, Florida.

MICHAEL M. PARRISH

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

Filed with the Clerk of the Division of Administrative Hearings this 26th day of June, 2000.

COPIES FURNISHED:

Edward J. Marko, Esquire Robert Paul Vignola, Esquire Broward County School Board 600 Southeast Third Avenue 11th Floor

Fort Lauderdale, Florida 33301

Holiday Hunt Russell, Esquire Berger, Davis & Singerman

350 East Last Olas Boulevard Suite 1000

Fort Lauderdale, Florida 33301

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: 00-002312BID

Orders for Case No: 00-002312BID