STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS TALLAHASSEE CORPORATE CENTER, LLC, Petitioner, vs. Case No. 18 0371BID FLORIDA FISH AND WILDLIFE CONSERVATION COMMISSION, Respondent, and NATHAN LEE HEAD OF TALLAHASSEE, LLC, Intervenor. ___________ ____________________/ RECOMMENDED ORDER Pursuant to notice, a final hearing was held in this case on February 19 and 20, 2018 , in Tallahasse e, Flor ida, before Yolonda Y. Green , a duly designated Administrative Law Judge of the Division of Administrative Hearings (ÐDivisionÑ) . APPEARANCES For Petitioner: M. Stephen Turner, Esquire David K. Miller, Esquire John F. Loar, Esquire Broad and Cassel , LLP 21 5 South Monroe Street , Suite 400 Tallahassee, Florida 32301 For Respondent : Eduardo S. Lombard, Esquire Vezina, Lawrence and Piscitelli, P.A. 413 E ast Park Avenue Tallahassee, Florida 32301 For Intervenor: M. Chris topher Bryant, Esquire Segundo J. Fernandez , Esquire Oertel, Fernandez, Bryant & Atkinson, P.A. Post Office Box 1110 Tallahassee, Florida 32302 1110 STATEMENT OF THE ISSUE S Whether the Florida Fish and Wildlife Conservation Comm issionÓs ( ÐRespondentÑ or ÐFWCÑ) determination that Tallahassee Corporate Center, LLC (ÐPetitionerÑ or ÐTCCÑ) , submitted a nonresponsive reply to FWCÓs Invitati on to Negotiate (ÐITNÑ) No. 770 0235 is contrary to the CommissionÓs governing statutes, the age ncyÓs rules or policies , or the solicitation specifications; and , if so, whether it was clearly erroneous, contrary to competition, arbitrary, or capricious. PRELIMINARY STATEMENT On July 19, 2017, Respondent , FWC, issued ITN No. 770 0235 , soliciting repli es for leased office space in Tallahassee, Florida, with a lease term to begin November 1, 2019. Between August 15, 2017, and November 2, 2017, FWC issued four a ddenda to the ITN, which contained amendments, modifications, and explanations to the ITN. On August 10, 2017, FWC issued Addendum No. 1 to the ITN, which contained modifications and explanations to the ITN in response to proposed vendor questions. On August 15 , 2017, FWC issued Addendum No. 2 to the ITN , whi ch contained amended answers and modif ications in response to proposed vendor questions. On September 18, 2017, FWC issued Addendum No. 3 to the ITN, which contained an amendment to the revised bid opening location. On November 2, 2017, FWC issued Addendum No. 4 to the I T N, which contained a revised calendar of events. On December 11, 2017, FWC posted its Notice of Intent to award the contract to Nathan Lee Head, LLC (ÐNLHÑ). On December 11, 2017, Petitioner timely submitted its Notice of I ntent to protest the Notice of Intent to a ward the c ontract . On December 23, 2017, TCC timely filed its Formal Protest and Petition for Formal Administrative Hearing. On January 19, 2018 , the Petition was referred to the Division for a final hearing. NLH filed a Petition for Leave to Intervene, which was granted. On February 5, 2018, Petitioner filed a Motion to Amend the Petition (ÐMotion to AmendÑ). On January 23, 2018, the undersigned granted the Motion to Amend and ordered the hearing to go forward based on the amended Petition . Prior to the hear ing, the parties filed a Joint Pre h earing Statement , which included stipulated findings of fact that have been incorporated into the Findings of Fact found below. The undersigned issued a Notice of Hearing scheduling this matter for February 19 and 20, 2018, and it commenced as scheduled. At the final hearing, there were no joint exhibits offered. However, each party offered Jon Creamer as a witness. PetitionerÓs Exhibits 1 through 3, 12, 14, and 15 were admitted without objection; and Exhibits 6 thro ugh 8 and 18 were admitted over objection. PetitionerÓs Exhibit 5 was proffered , but not admitted into evidence . In addition to Mr. Creamer, Petitioner presented the testimony of Todd Hakimi, vice p resident of TCC . RespondentÓs Exhibits 1, 2, and 4 were admitted without objection; and Exhibit 3 was ad mitted over objection. Interve norÓs Exhibit 1(a) 1(e) was admitted over objection. The three volume Official Transcript for the final hearing was filed on February 23, 2018. The parties timely filed thei r Proposed Recommended Orders, which have been considered in the preparation of this Recommended Order. FINDING S OF FACT The following Findings of F act are based on exhibits admitted into evidence, testimony offered by witnesses, and admitted facts s et forth in the pre hearing stipulation. ITN No. 770 0235 and Background 1 . FWC is a state agency that seeks office space to be occupied by personnel from six of FWCÓs divisions. FWC currently leases office space from TCC , which expires in October 20 19. 2 . On July 19, 2017, FWC issued ITN No. 770 0235, seeking vendors that could provide 53,000 square feet of office s pace for lease. FWC anticipates occupying the space by November 1, 2019. Between August 15, 2017, and November 2, 2017, FWC issued four addenda to the ITN, which contained amendments, modifications, and explanations to the ITN. 3 . There were no bidders that challenged the terms, conditions, or specifications contained in the ITN or its amendments . 4 . TCC and NLH were two of t he potential lessors that submitted replies in response to the ITN. 5 . FWC seeks to lease either a buildin g that already exists or a non existing building to be constructed in the future. The ITN describes the proposals requested as follows: Competitiv e proposals may be submitted for consideration under this Invitation to Negotiate (ITN) for the lease of office space in either an existing building or a non ȃ existing (build ȃ to ȃ suit/turnkey) building. NOTE: All buildings must comply with the Americans w ith Disabilities Act (ADA) as stated in Attachment A, Agency Specifi cations, Section 6.D., page 32. OPTION 1 ȃ an Ò existing Ó building : To be considered an Ò existing Ó building, the facility offered must be enclosed with a roof system and exterior walls mus t be in place at the time of the submittal of the Reply. OPTION 2 ȃ a Ò non ȃ existing Ó building : Offeror agrees to construct a building as a Òbuild ȃ to ȃ suitÓ (turnkey) for lease to FWC. 6 . Each applicant that submitted a proposal in response to the ITN w as required to meet the specification in Attachment A of the ITN. T he ITN provides as follows : FWC is seeking detailed and competitive proposals to provide built ȃ out office facilities and related infrastructure for the occupancy by FWC. As relates to any space that is required to be built ȃ out pursuant to this Invitation to Negotiate in accordance with this Invitation to Negotiate, see Attachment Ò A Ó which includes the FWC Specifications detailing the build out requirements. 7 . The specifications in Atta chment A provided the basic requirements for the potential leased space such that proposals offering existing or non existing building may be compared and evaluated together. 8 . The ITN included certain provisi ons to clarify the rights contemplated by t he ITN , and included the following disclaimer: This ITN is an invitation to negotiate and is for discussion purposes only. It is not an offer, contract or agreement of any kind. Neither FWC nor the Offeror/Lessor shall have any legal rights or obligatio ns whatsoever between them and neither shall take any action or fail to take any action in reliance upon any part of these discussions until the proposed transaction and a definitive written lease agre ement is approved in writing by FWC. This ITN shall n ot be considered an offer to lease. The terms of any transaction, if consummated, shall not be final nor binding on either party until a Lease Agreement is executed by all parties. This ITN may be modified or withdrawn by FWC at any time. 9 . The ITN a lso included a provision expressly reserving FWCÓs Ðright to negotiate with all responsive and responsible Offerors, serially or concurrently, to determine t he best suited solution.Ñ The term Ð Offeror Ñ was defined by the ITN to mean Ðthe individual submit ting a Reply to this Invitation to Negotiate, such person being the owner of the proposed facility or an individual duly authorized to bind the owner of the facility.Ñ This reservation of rights placed interested lessors on notice that only responsive les sors could be invited to negotiations. 10 . While TCC and NLH were two of the potential lessors that submitted replies in response to the ITN , the bidders submitted different proposals. TCC submitted a proposal for an existing building, and NLH submitte d a proposal for a non existing building. 11 . During an initi al review of all replies, FWC determined TCCÓs reply to be nonresponsive based on TCCÓs response to ITN section IV.G (Tenant Improvements) and a statement titled ÐAdditional ResponseÑ that TCC s ubmitted with its reply. As a result, FWC did not evaluate or score TCCÓs reply. After TCCÓs reply was declared nonresponsive, there were no further negotiation s with TCC regarding the ITN. 12 . NLHÓs reply passed the initial responsiveness review and wa s then evaluated and scored by FWC. FWC ultimately issued an intended award of the contract to NLH after conducting negotiations. Tenant Improvement Cap 13 . The ITN prohibited vendors from proposing conditional or contingent lease rates that included a tenant improvement cap, or allowance. A tenant improvement cap reflects the maximum amount the landlord is willing to spend to make imp rovements to leased space. Mr. Hakimi asserted that the tenant improvement cap would be an incentive to FWC to enter a lease . Ho wever, the tenant improvement cap would also place a limit on improvements. 14 . According to ITN section IV.E, any reply offering a lease rate with a tenant improvement cap would be deemed nonresponsive : FULL SERVICE (GROSS) RENTAL RATE Th e Offeror shall provide FWC with a Full Service (gross) lease structure. Therefore, the lease rate must include base rent, taxes, all operating expenses (including, but not limited to, janitorial services and supplies, utilities, water, insurance, interio r and exterior maintenance, recycling services, garbage disposal, pest control, security system installation and maintenance, and any amortization of required tenant improvements to the proposed space). There shall be no pass through of additional expense s . . . . Offerors must provide their best, firm lease rates. Lease rates that are contingent, involve a basic rate plus Ðcap Ñ or Ðrange Ñ for such things as tenant improvements will be deemed nonresponsive. 15 . The ITN also provided, in section IV.G, t hat any current lessor must meet all ITN requirements, including those set forth in ITN Attachment A : TENANT IMPROVEMENTS The State requires a Ðturn ȃ keyÑ build ȃ out by the Landlord. Therefore, Offeror shall assume all cost risks associated with delivery in accordance with the required specifications detailed in this ITN, including Attachment A (see pages 28 ȃ 45). Additionally, replies for space which is currently under lease with, or occupancy by, the Florida Fish and Wildlife Conservation Commission does not exclude the Offeror from meeting the requirements specified in this ITN document. Offeror agrees to provide Ðturn ȃ keyÑ build ȃ out/improvements in accordance with the specifications detailed in this ITN. (use an X to mark one of the following): YES ______ or NO______ 16 . TCC responded ÐNOÑ to the statement ÐOfferor agrees to provide Ò turn key Ó build out/improvements in accordance with the specif ications detailed in this ITN.Ñ Additional Response 17 . Not only did TCC include a barred tenant improvement cap, but TCC also attached an addendum to its proposal, which provided the following: The reality is that as the current Landlord, it would be impossible to ask FFWCC to move out of its existing office space in order to meet the requested Agency Specifications in Attachment A. If this condition makes our response to the Invitation to Negotiate (ITN) Ðnon responsiveÑ, we stand willing to continu e further negotiations with FFWCC. 18 . There was no provision in the ITN for additional responses outside what was requested in the ITN. More importantly, the addendum indicated TCC could not comply with the ITN, unless certain conditions were met. M r. Hakimi confirmed the effect of what was written in the addendum when he testified that TCC is unable to meet Attachment AÓs specifications because it presently has a tenant in place ( i.e., FWC) that prevents it from constructing the building improvement s necessary to comply with ITN Attachment A. Proof of Ownership of Property 19 . The ITN also provided that to be responsive, each lessor was required to submit certain documentation demonstrating the lessorÓs control of the property proposed for the leased space: 1. Replies must completely and accurately respond to all requested information, including the following : (A) Control of Property (Applicable for Replies for Existing and/or Non ȃ Existing Buildings). For a Reply to be responsive, it must be submitted by one of the entities listed below, and the proposal must include supporting documentation proving control of the property proposed. This requirement applies to: 1. The real property (land) ; 2. The proposed building(s) (or structure(s) ; 3. The proposed parking area(s). Control of parking includes the area(s) of ingress and egress to both the real property and the building(s). ¤ The owner of record of the facility(s) and parking area(s) Î Submit a copy of the deed(s) evidencing clear title to the property proposed . ¤ The authorized agent, broker or legal representative of the owner(s) Î Submit a copy of the Special Power of Attorney authorizing submission of the proposal. 20 . The Special Power of Attorney form was attached to the ITN as Attachment K. TCCÓs certification was executed by TCC president , Lyda Hakimi. However, T CC did not execute Attachment K or include an executed power of attorney to demonstrate that TCC has control of the property. 21 . The evidence offered at hea ring of the propertyÓs ownership contained in TCCÓs reply was a deed showing DRA CRT Tallahassee Center , LLC to be the property owner. Respondent argued that although TCC owns DRA CRT Tallahassee Center, LLC, the tw o are different legal entities. Because these were two different legal entities, TCC was required to provid e a copy of A ttachment K to its response to be deemed responsive. Broker Commission 22 . The ITN required lessors to agree to execute a broker commission agreement, which was at tached to the ITN as Attachment J: Offeror understands FWC is utilizing the services of a Tenant Broker representative for this lease space requirement and the successful Offeror shall execute a Commission Agreement , in coordination with FWC Ó s Tenant Broker repres entative, within fifteen (15) business days of notification of Award. Offeror agrees and acknowledges that a Tenant Broker Commission Agreement is a requirement and the successful Offeror shall be required to execute a Commission Agreement as described a bove . (use an X to mark one of the following): YES ______ or NO______ 23 . The ITN included a schedule for the commission rate based on the total aggregate gross base rent that could be paid ranging from 2.50 percent to 3.50 percent . TCC conditioned i ts reply by agr eeing to pay a two percent broker commission, which is inconsistent with the commission schedule. 24 . By offering a lower commission rate, TCC could save money. TCC would then have a competitive advantage over other bidders. TCCÓS Bid w as Nonresponsive 25 . Based upon the foregoing, TCCÓs bid submission added a tenant improvement cap, failed to comply with the broker commission rate , failed to provide supporting documents to demonstrate proof of property ownership, and added additional conditions regarding compliance with the ITN requirements. The information requested and terms of the ITN were required for TCCÓs bid to be responsive. 26 . TCC did not file a challenge to the specifications or any of the requirements of the ITN. I t is n ow too late for such a challenge. 27. TCCÓs inclu sion of a tenant improvement allowance l imits the amount that would pay for improvements. The low er broker commission increases t he profit advantage for TCC more than for other bidders , which would be an u nfair advantage over other bidders. 28 . TCCÓs failure to comply with the terms of the ITN and failure t o provide the required attachment to show proof of ownership were not minor irregularities, which FWC could waive. Therefore, FWC properly determined that TCCÓs bid submission was nonresponsive . Standing 29 . TCC submitted a bid proposal that did not conform t o the requirements of the ITN and it seeks relief that includes setting aside FWCÓs rejection of its proposal. Therefore, TCC has standing to bring this protest. 30 . If it is determined that TCC was nonresponsive, NLH has standing to the extent the procurement process could be deemed contrary to competition. CONCLUSIONS OF LAW 31 . The Division of Administrative Hearings has jurisdiction ov er the subject matter and the parties to this action in accordance wi th s ections 120.569 and 120.57(3 ), Florida Statutes (2017) . 32 . TCC submitted a bid proposal that did not conform to the requirements of the ITN. Because the relief sought by TCC is to set aside its rejection of PetitionerÓs reply, TCC has standing to bring this protest. Capelletti Bro s ., Inc. v. Dep Ó t of Gen. Serv s . , 432 So. 2d 1359 (Fla. 1st DCA 1983) . 33 . Petitioner, as the party challenging the proposed agency action, has the burd en of proof in this proceeding and must show that the agency's proposed action is contrary to the agency's governing statutes, rules or policies, or the bid or proposal specifications. A de novo hearing was conducted to evaluate the action taken by the ag en cy. § 120.57(3)(f), Fla. Stat. ; State Contracting & EngÓg Corp. v. Dep Ó t of Transp . , 709 So. 2d 607 (Fla. 1st DCA 1998). The administrative law judge may receive evidence, as wit h any hearing held pursuant to s ection 120.57(1), but the purpose of the p roceeding is to evaluate the action taken by the agency based on the information available to the agency at the time it took the action. I d. 34 . Agencies enjoy wide discretion when it comes to soliciting and accepting proposals, and an agency's decision , when based upon an honest exercise of such discretion, will not be set aside even where it may appear erroneous or if reasonable persons may disagree. Baxter's Asphalt & Concrete, Inc. v. Dep Ó t of Transp . , 475 So. 2d 1284, 1287 (Fla. 1st DCA 1985); Cap eletti Bros., Inc. v. State, Dep Ó t of Gen. Serv s. , 4 32 So. 2d at 1363 . Section 120.57(3)(f) establi shes the standard of proof as to whether the proposed action was clearly erroneous, contrary to competition, arbitrary or capricious. 35 . A decision is co nsidered to be clearly erroneous when , although there is evidence to support it, after review of the entire record the tribunal is left with the definite and firm conviction that a mistake has been committed. U. S . v. U.S. Gypsum Co. , 333 U.S. 354, 395 (19 48). An agency action is capricious if the agency takes the action without thought or reason or irrationally. Agency action is arbitrary if it is not supported by facts or logic. See Agrico Chem. Co. v. State Dep Ó t of Envt l . Reg . , 365 So. 2d 759, 763 (F la. 1st DCA 1978). An agency decision is contrary to competition if it unreasonably interferes with the objectives of competitive bidding. See Wester v. Belote , 138 So. 721, 723 24 (1931). TCCÓs Bid 36 . In this case, TCC submitted a bid as an Ðexisting Ñ building offeror. Its bid, however, is contrary to proposal specifications with respect to the tenant improvement cap and the broker commission rate. 37 . The ITN was issued pursuant to section 255.25, Florida Statutes (2017) , which applies to state ag enciesÓ procurement of leased building space. 38 . Section 255.25 (3)(a)3. p rovides , in pertinent part : a. If the agency determines in writing that the use of an invitation to bid or a request for proposals will not result in the best leasing value to th e state, the agency may procure leased space by competitive sealed replies . . . . b. The agency shall evaluate and rank responsive replies against all evaluation criteria set forth in the invitation to negotiate and select, based on the ranking, one or more lessors with which to commence negotiations. After negotiations are conducted, the agency shall award the contract to the responsible and responsive lessor that the agency determines will provide the best leasing value to the state. 39 . Section 2 55.248 defines Ð responsive reply , Ñ as used in 255.25 , as a reply Ðsubmitted by a responsive and responsible lessor, which conforms in all material respects to the solicitation.Ñ £ 225.248(7), Fla. Stat. Ð Responsive lessor Ñ is defined as Ða lessor that ha s submitted a bid, proposal, or reply that conforms in all material respects to the solicitation.Ñ § 225.248(8), Fla. Stat. 40 . A lessor whose reply conform s in all material respects to the ITN may be invited to negotiate. Here, TCCÓs offer was not res ponsive in several areas. First, TCC offered lease rates that included a tenan t improvement cap. Second, TCC offered lease rates were contingent on FWCÓs acceptance of terms expressly prohibited by the ITN. Third, TCC failed to demonstrate control of th e property it offered for lease. Fourth, TCC offered a different broker commission than the ITN required lessors to agree to. 41 . TCC argues that because this procurement involves an ITN and not a request for proposals or invitation to bid, lessors are a llowed to modify their replies during the negotia tion process. TCC is under the impression that the initial ITN replies do not need to conform strict ly to the ITN requirements. A lthough section 255.25 allows FWC and lessors to negotiate to achieve the be st value for the State, the reply submitted must be responsive to the ITN. 42 . TCCÓs failure to comply with the terms, conditions, and specifications renders a vendor nonresponsive and ineligible for negotiations. As a nonresponsive lessor, TCC was not eligible to participate in negotiations and was not eligible for the ultimate award under the ITN process. TCC Failed to Prove that I ts Bid Submittal was Responsive 43 . The evidence overwhelmingly established that TCCÓs bid submission did not include al l of the documentation and failed to co mply with the terms of the ITN specifically required to comply with the ITN. It is for these reasons that FWC determined that TCCÓ s bid submission was nonresponsive. 44 . The determination that TCCÓs bid submission d id not include all of the documentation and full compliance as required by the ITN, however, does not end this analysis . Not all irregularities in bid submissions or deviations from the terms of an invitation to bid are considered material enough to requi re rejection of a bid submittal. Tropabest F oods, Inc. v. DepÓt of Gen. Servs . , 493 So. 2d 50 (Fla. 1st DCA 1986); s ee also Fla. Admin . Code R. 60A 1.002(13) . A deviation from the requirements of an invitation to bid " is only material if it gives the bid der a substantial advantage over the other bidders and thereby restricts or stifles competition. Ñ Tropabest Foods , 493 So. 2d at 52. See also Robinson Elec. Co. v. Dade Cnty. , 417 So. 2d 1032, 1034 (Fla. 3d DCA 1982). 45. In Florida , there are two crite ria that are used to determine whether a deviation is material as follows : (1) whether the effect of waiving the deviation would be to deprive the agency of a ssurance that the contract will be performed and guaranteed according to its specified requireme nts ; or (2) whether the deviation is of such a nature that its waiver would adversely affect competiti ve bidding by placing a bidder in a position of advantage over other bidders or by otherwise u ndermining the necessary common standard of competition. Id . 46. The First District Court of Appeal has found that, by definition, anything affecting the price of a bid is not a minor irregularity and may not be waive d by the agency. Rather, a deviation affecting price is material and m ay not be waived by the ag ency. Mercedes Lighting & Elec. Supp., Inc. v. Fla. DepÓt of Gen. Servs. , 560 So. 2d 272, 278 (Fla. 1st DCA 1990). 47. TCCÓs deviations from the ITN requirements were material. As stated above, in the findings of fact above, the deviations affected pric e and afforded TCC a competitive advantage over other bidders . Waiver to Challenge Specifications 4 8 . TCC also argues that the ITNÓs terms, conditions, and specifications should have been different to accommodate TCC as the current lessor. To the extent TCC seeks through its petition to challenge the ITN terms, conditions, and specifications, TCC has waived that opportunity by failing to timely bring such a challenge. See § 120.57(3)(b), Fla. Stat. TCC also accepted the ITN terms, conditions, and specif ications as published when TCC submitted its reply. The undersigned is without authority to consider a specifications challenge at this stage of the procurement process. 4 9 . Section 120.57(3)(b) provides as follows: With respect to a protest of the ter ms, conditions, and specifications contained in a solicitation, including any provisions governing the methods for ranking bids, proposals, or replies, awarding contracts, reserving rights of further negotiation, or modifying or amending any contract, the notice of protest shall be filed in writing within 72 hours after the posting of the solicitation . . . . Failure to file a notice of protest or failure to file a formal written protest shall constitute a waiver of proceedings under this chapter. 50 . Si milarly, t he ITN provided as follows: With respect to a protest of the terms, conditions and specifications contained in this solicitation, including any provisions governing the methods for ranking Replies, awarding contracts, or modifying or amending a ny contract, the notice of protest shall be filed in writing within 72 hours (Saturdays, Sundays, and state holidays excluded) after the posting of the solicitation. For purposes of this provision, the term Ðthe solicitationÑ includes any addendum, respon se to written questions, clarification or other document concerning the terms, conditions, or specifications of the solicitation. 51. The purpose of requiring solicitation terms, conditions, and specifications to be challenged within 72 hours of publicat ion Ðis to allow an agency, in order to save expense to the bidders and to assure fair competition among them, to correct or clarify plans and specifications prior to accepting bids.Ñ Capeletti Bros., Inc. v. DepÓt of Transp. , 499 So. 2d 855, 857 (Fla. 1s t DCA 1986). 52 . TCC relies on B&L Service, Inc. v. Department of Health and Rehabilitative Services , 624 So. 2d 805 (Fla. 1st DCA 1993), to argue that the ITNÓs terms, conditions, and specifications may be challenged through a challenge to the award. H owever, B&L Service does not apply here . B&L Service was decided under the previous version of the statutory provision, which applied only to challenges based on project plans or specifications. 1/ 53 . Regarding a protest of the specifications contained in an invitation to bid or in a request for proposals, the previous version of the statute provide that the notice of protest was to be filed in writing within 72 hours after the receipt of notice of the project plans and specifications or intended project plans and specifications in an ITN or request for proposals. § 120.53(5)(b), Fla. Stat. (1992) (former version of 120.57(3)(b)). 54 . The current version broadens the scope of what must be challenged within 72 hours of the solicitationÓs specifications to avoid a waiver of rights as follows: Ðthe terms, conditions, and specifications contained in a solicitation, including any provisions governing the methods for ranking bids, proposals, or replies, awarding contracts, reserving rights of further negotia tion, or modifying or amending any contract.Ñ § 120.57(3)(b), Fla. Stat. 55 . In this case, by failing to raise these complaints within 72 hours of the ITNÓs publicati on, TCC waived the right to raise the allegations in this proceeding. 56 . In summary, FWCÓs propos ed action regarding ITN No. 770 0235 is not contrary to competition, arbitrary , or capricious, and do es not contravene FWCÓs governing statutes, rules , or policies. RECOMMENDATION Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Florida Fish and Wil dl ife Conservation Commission enter a final order dismissing Tallahassee Corporate Center, LLCÓs Petition. DONE AND ENTERED this 27 th day of March , 2018 , in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399 3060 (850) 488 9675 Fax Filing (850) 921 6847 www.doah.state.fl.us Filed with the Cle rk of the Division of Administrative Hearings t his 27 th day of March , 2018. ENDNOTE 1/ With respect to a protest of the specifications contained in an invitation to bid or in a request for proposals, the notice of protest shall be filed in writing within 72 hours after the receipt of notice of the project plans and specifications or intend ed project plans and specifications in an invitation to bid or request for proposals. § 120.53(5)(b), Fla. Stat. (1992) (former version of 120.57(3)(b)). COPIES FURNISHED: Anthony Justin Pinzino, Esquire Florida Fish and Wildlife Conservation Commis sion Farris Bryant Building 620 South Meridian Street Tallahassee, Florida 32399 1600 (eServed) M. Stephen Turner, Esquire David K. Miller, Esquire John F. Loar, Esquire Broad and Cassel Suite 400 215 South Monroe Street Tallahassee, Florida 32301 ( eServed) M. Christopher Bryant, Esquire Segundo J. Fernandez, Esquire Oertel, Fernandez, Bryant & Atkinson, P.A. Post Office Box 1110 Tallahassee, Florida 32302 1110 (eServed) Eduardo S. Lombard, Esquire Vezina, Lawrence and Piscitelli, P.A. 413 East Pa rk Avenue Tallahassee, Florida 32301 (eServed) Eugene Nichols "Nick" Wiley II, Exec utive Director Florida Fish and Wildlife Conservation Commission Farris Bryant Building 620 South Meridian Street Tallahassee, Florida 32399 1600 (eServed) Harold G. "Bud" Vielhauer, General Co unsel Florida Fish and Wildlife Conservation Commission Farris Bryant Building 620 South Meridian Street Tallahassee, Florida 32399 1600 (eServed) NOTICE OF RIGHT TO SUBMIT EXCEPTIONS All parties have the right to submi t written exceptions within 1 0 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: 18-000371BID

Orders for Case No: 18-000371BID