The Issue The issue is whether Petitioner's bid was responsive to the Department of Health and Rehabilitative Services' Invitation to Bid 590:2248 for lease space in Lake County, Florida.
Findings Of Fact Department of Health and Rehabilitative Services issued its Invitation to Bid (ITB) No. 590:2248 for lease space in Lake County, Florida. The ITB contained bidder specifications, evaluation criteria and documentation requirements. Petitioner Kevin T. Roberts submitted a bid within the time limits of the ITB. Petitioner Roberts attended a pre-bid conference conducted by HRS. In its ITB, HRS reserved the right to reject any and all bids. The ITB required that the bid must show control of the property by the owner of record, a lease with documentation, an option to purchase with documentation, or an option to lease with authority to sublease with documentation. The ITB required that the successful bidder enter into a lease with HRS on the lease form attached to the ITB as Attachment E (Joint Exhibit 1). This lease form required exclusive-use parking spaces. The ITB required a minimum of 300 parking spaces. Petitioner was present at the pre-bid conference where the exclusive nature of parking spaces required by the bid was discussed. Petitioner's bid contains 30 exclusive-use parking spaces. The site plan of the Lake Hills Shopping Center submitted with Roberts' bid shows a total of 378 parking spaces for the entire shopping center. Approximately one-half of the space in the center is included in the bid proposal. The available parking spaces are insufficient to meet the minimum requirements of the ITB. The shopping center involved in the bid proposal has approximately 40,000 square feet of lease space which was not included in the bid proposal. Diamondhead Partnership is a partnership under the laws of the State of Florida, and Kevin T. Roberts and Thomas E. Smith are the general partners of the partnership. Diamondhead Partnership holds an option to lease and authority to sublease 45,000 square feet of the commercial space located in the Lake Hills Shopping Center. Kevin T. Roberts submitted a bid proposal in his individual name for 45,000 square feet of commercial space located in the Lake Hills Shopping Center in Eustis, Lake County, Florida. The documentation to show control of the property filed by Roberts with his bid contained a copy of Diamondhead Partnership's lease option. Thomas E. Smith, the other general partner in Diamondhead Partnership, submitted a bid proposal in his individual name for the same 45,000 square feet of commercial space located in the Lake Hills Shopping Center in Eustis, Lake County, Florida, and relied on the same copy of Diamondhead Partnership's lease option. Kevin T. Roberts does not have control of the property that is the subject of his bid proposal. The ITB requires that the name of the entity submitting the bid be identified and, if a partnership, that the name of the partnership be typed or stamped on the bid. Further, Roberts used his personal social security number on his bid and not the partnership's tax ID number. The ITB requires the social security number or tax ID number of the entity submitting the bid. Diamondhead Partnership, the entity with control of the property, did not file a bid in this case.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health and Rehabilitative Services enter a Final Order rejecting the bid of Kevin T. Roberts as nonresponsive to ITB 590:2248. DONE and ENTERED this 28th day of January, 1991, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of January, 1991. APPENDIX TO RECOMMENDED ORDER The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted in this case. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Department of Health and Rehabilitative Services Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1); 3-17(2-16); and 19(19) Proposed findings of fact 2 and 18 are irrelevant. COPIES FURNISHED: Frances S. Childers, Assistant Counsel HRS District 3 Legal Office 1000 N.E. 16th Avenue Gainesville, FL 32609 Joe A. McClain, Attorney at Law McClain, Dwyer & Sestak, P.A. Post Office Box 4 402 East Church Avenue Dade City, FL 33526 Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Linda K. Harris Acting General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The ultimate issue for determination at formal hearing was whether the intended decision by the Palm Beach County School Board to reject all bids on the Gladeview Elementary School project, Project No. 125191702/205840, departs from the essential requirements of law.
Findings Of Fact Palm Beach County School Board (Respondent) issued a request for proposals (RFP), soliciting sealed bids for the reroofing, renovating and replacing the HVAC of Gladeview Elementary School, Project No. 125191702/205840 (Gladeview Elementary Project). The RFP and bid documents for the Gladeview Elementary Project were contained in the "Project Manual." The addendum to the RFP required all bids to be submitted by April 20, 1993 at 2:00 p.m., at which time all bids were to be publicly opened. Pertinent to the case at hand, the RFP further required a bid bond or cashier's check for not less than five percent (5 percent) of the bid and notified bidders that Respondent had the right to reject all bids and waive any informalities. Section 00100 of the "Instruction to Bidders" in the Project Manual is material to the case at hand and provides in pertinent part: BIDDING PROCEDURES: * * * Preparation and Submission of Bid Proposal Form: [P]roposals containing any conditions, omissions, unexplained erasures, alternates, items not called for or irregularities of any kind may be rejected by the Owner. . . (e) Proposal Submittal shall contain the following documents: Section 000443 - Public Entity Crimes Statement Section 00310 - Proposal Form Section 00410 - Bid Bond or otherwise acceptable Bid Guarantee (see Paragraph 3.08). Manufacturer's Letter of Intent to Warranty (See Section 7610) and will be enclosed in a sealed envelope. . . * * * 3.08 Bid Guarantee: Bids shall be accompanied by a bid guarantee of not less than five percent (5 percent) of the amount of the Base Bid, which shall be a Cashier's Check or a Bid Bond (Bid Bond, see Section 00410) made payable to the Owner. * * * 3.10 Subcontractors: At the time of the Bid Opening each Bidder submitting a Bid shall submit a written list of the major Subcontractors; namely, structural steel, membrane roofing, preformed metal roofing & siding, plumbing, HVAC, electrical and general contractor, on Form 00420 (List of Major Subcontractors). The list shall be placed in a "sealed envelope". . . Within five (5) Owner Business days after the Bid Opening, the apparent low Bidder(s) shall submit Form 00430) (List of Subcontractors), completed in full to the Owner ... Failure to submit these lists within the time period specified herein shall result in a non- responsive Bid. * * * REJECTION OF BIDS: 6.01 The Bidder acknowledges the right of the Owner to reject any or all Bids and to waive any informality or irregularity in any Bid received. In addition, the Bidder recognizes the right of the Owner to reject a Bid if the Bidder failed to furnish any required Bid security, or to submit the data required by the Bidding Documents, or if the Bid is any way incomplete or irregular; to reject the Bid of a Bidder who is not in a position to perform the Contract; and to re-advertise for other or further Bid Proposals. SUBMISSION OF POST-BID INFORMATION: * * * 7.02 The selected Bidder shall within eight (8) Owner business days after notification of Board Award submit the following: . . . 6. Photocopies of prime Contractor's certification and/or registration and either state registrations or Palm Beach County Certificate of Competency of all Subcontractors. . . * * * AWARD OF CONTRACT: The Contract, if awarded by the Owner, will be awarded to the lowest bona fide responsible Bidder; provided the Bid is reasonable and it is in the interest of the Owner to accept the Bid. The method of determining the lowest bona fide Bid from Bidders shall be the Base Bid price plus or minus Alternate Prices listed on the Bid Proposal Form which are accepted by the Owner. Alternates will be considered for acceptance by the Owner as set forth in the Alternate section of the Specifications, Division One-General Requirements, Section 01030-Alternates. The bid opening was conducted on April 20, 1993, at which time the bids were tabulated and the Bid Tabulation Form (BTF) was posted. Respondent received bids from Bonner Roofing whose base bid was $869,000, S&S Roofing, Inc. (Petitioner S&S Roofing) whose bid was $693,000, Therma Seal Roofs, Inc. (Petitioner Therma Seal) whose bid was $691,500, Titan Roofing, Inc. (Petitioner Titan Roofing) whose base bid was $689,500, and Trans Coastal Roofing, Inc. (Petitioner Trans Coastal) whose base bid was $884,248. The BTF showed that the rank of the bids, beginning with the apparent lowest bidder to the apparent highest, were (1) Petitioner Titan Roofing, (2) Petitioner Therma Seal, (3) Petitioner S&S Roofing, and (4) Petitioner Trans Coastal. The BTF showed further that Bonner Roofing failed to submit with its bid the Manufacturers Letter of Intent which was a required document. Bonner Roofing's bid was rejected. Within minutes after the bid opening, Respondent's staff discovered that Petitioner Titan Roofing had failed to list its major subcontractors on Form 00420, List of Major Subcontractors, even though it had submitted the form. Respondent's staff contacted Petitioner Titan Roofing by telephone and requested the list. Petitioner Titan Roofing's failure to submit a completed Form 00420 was inadvertent and not intentional. At the time of the bid opening, Respondent's staff had not considered Petitioner Titan Roofing's failure to submit a completed Form 00420 to be a major irregularity, but a minor one. Consequently, Respondent's staff considered the failure to be a waivable irregularity. Unable to discern if it had the original figures submitted by its major subcontractors, Petitioner Titan Roofing telephoned them to verify the figures it had. Within two hours, Petitioner Titan Roofing had faxed to Respondent's staff a completed Form 00420. Respondent's recommendation or intended action was to award the bid to Petitioner Titan Roofing as the apparent lowest bidder. Petitioner Therma Seal, the apparent second lowest bidder, filed a timely protest of Respondent's intended action. Respondent held an informal hearing on the protest, and the recommendation was to reject all bids. In prior bids, a bidder's failure to submit Form 00420 at bid opening has been considered a major irregularity by Respondent. The purpose of Form 00420 is to prevent or guard against bid shopping. Respondent's action has been to routinely reject bids with such a deficiency. Petitioner Therma Seal failed to submit with its bid the required bid bond of 5 percent of its base bid. Failure to submit a required bid bond is considered by Respondent to be a major irregularity. Furthermore, Petitioner Therma Seal was not a licensed general contractor. It listed itself as the general contractor on Form 00420. All bids failed to comply with the roofing warranties and specifications, which Respondent considers to be a major irregularity. Respondent's budget, based upon its architect's construction estimate, for the Gladeview Elementary Project was $652,130. All bids were over budget. Prior to the formal hearing, Respondent Trans Coastal notified the parties that it was not proceeding with its protest.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Palm Beach County School Board enter its final order rejecting all bids on the Gladview Elementary School project, Project No. 125191702/205840, and re-advertise. DONE AND ENTERED this 7th day of September 1993 in Tallahassee, Leon County, Florida. ERROLL H. POWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of September, 1993.
The Issue The two major issues in this case are as follows: Was the failure of Datamaxx to submit resumes of training and maintenance personnel as required by Performance Mandatory No. 10 of the Invitation to Bid a material deviation from the Invitation to Bid such as to render Datamaxx a nonresponsive bidder? If Datamaxx was a nonresponsive bidder, must the contract be awarded to Burroughs, or must DHRS, pursuant to Section 13A-1.002(3), Florida Administrative Code, have the contract rebid, or seek single source procurement or negotiation approval from the Division of Purchasing?
Findings Of Fact Based on the admissions of the parties, on the testimony of the witnesses at the hearing, and on the exhibits received in evidence, I make the following findings of fact: For at least the past 10 years, the DHRS Data Communications Network has been maintained by Burroughs on a sole source basis. At the end of the previous Burroughs Terminal Maintenance contract with Burroughs, the Department of General Services (DOS) asked DHRS to bid the contract in lieu of sole source procurement, it being the belief of DOS that there was competition in this area. On or about September 19, 1986, DHRS published an Invitation to Bid which advised prospective bidders that sealed bids would be opened on October 20, 1986, for a contract, known as "Burroughs Terminal Maintenance" [Bid No. 86 ATM] regarding maintenance of the terminals of the DHRS Data Communications Network. The Special Conditions of the Invitation to Bid contained, among others, the following provisions: The State has established certain require- ments with respect to bids to be submitted by bidders. The use of "shall," "must" or "will" (except to indicate simple futurity) in this Invitation to Bid indicates a requirement or condition from which a material deviation may not be waived by the State. A deviation is material if, in the State's sole discretion, the deficient response is not in substantial accord with this Invitation to Bid requirements, provides an advantage to one bidder over other bidders, has a potentially significant effect on the quantity or quality of items bid, or on the cost to the State. Material deviations cannot be waived. (at p. 1) No negotiations, decision, or actions shall be initiated or executed by the bidder as a result of any discussions with any State employee. Only those communications which are in writing from the Department's Purchasing office may be considered as a duly authorized expression on behalf of the State. Also, only communications from bidders which are signed and in writing will be recognized by the State as duly authorized expressions on behalf of the bidder. (at p. 2) All personnel performing maintenance must be trained to service the equipment covered by this contract. Training shall be completed before the individual is assigned to service the equipment covered by this contract. Training shall be provided to whatever level is necessary to ensure the individual has the required qualifications to perform satisfactory maintenance service on Burroughs equipment listed in Attachment A of this Invitation to Bid. Bidder shall submit with their bid a summary of their Burroughs training program and resumes of personnel who will be performing this training and the resumes of personnel who will be per- forming the maintenance. (at p. 8) Bidder shall certify to the State, at the time the bid is submitted, that bidder has existing established service centers staffed with personnel trained to service the equipment covered by this contract . . . In lieu of this requirement, if bidder does not have existing established service centers, liaison office, and trained personnel, and bidder submits a plan for compliance, the required certification must be given the State no later than two (2) weeks prior to the anticipated starting date of the contract as indicated in the paragraph of this document entitled Calendar of Events. Failure to comply with this requirement shall result in rejection of the bid and award of the bid to the next lowest responsive bidder. The Invitation to Bid was drafted by the Department of Health and Rehabilitative Services. The only bidders on the contract (other than no- bids) were Burroughs and Datamaxx. DHRS found Burroughs and Datamaxx both to be responsive bidders and posted their bids making them public in the recognized manner of publicizing the bidder to be awarded a bid. Both bids were found to be responsive by DHRS at the time they were made public. The Datamaxx bid was the lowest bid and the Burroughs bid was the next to lowest bid. DHRS staff recommended the contract be awarded to Datamaxx. The Datamaxx bid was approximately $784,000 less than the Burroughs bid. In its bid Datamaxx indicated that it understood and agreed to all provisions of the Invitation to Bid, specifically including those dealing with Mandatory Requirements, Verbal Instruction Procedure, Rejection of Bids, Bid Evaluation, Performance Mandatories, and Certification. Datamaxx submitted the Certification required under the terms of the Invitation to Bid and did not submit a plan for compliance with its bid. Datamaxx never requested in writing that the requirement for resumes be waived, and DHRS never advised Datamaxx in writing that it did not have to submit the resumes. Datamaxx did not submit with its bid the resumes of training and maintenance personnel required under Performance Mandatory 10 of the Invitation to Bid. Performance Mandatory No. 10 required the submission of resumes with the bid, and did not concern an event that would take place after the bid had been let. DHRS considered the requirement for resumes to be a mandatory requirement. The qualifications of the persons who would be performing the maintenance under the contract would have a potentially significant effect on the quality of the maintenance provided. Nothing could be more material to the contract than the ability of the personnel to perform that contract. The difference in the dollar amount of the bids of Burroughs and Datamaxx influenced the decision of DHRS in finding Datamaxx to be a responsive bidder. This was a major reason Datamaxx was found to be a responsive bidder. In evaluating the Datamaxx bid, DHRS went outside the material provided in the Datamaxx bid. Subsequent to the posting of bids, DHRS met with Datamaxx and advised Datamaxx that its initial submission was deficient for not including resumes with the bid, that DHRS had waived the resumes, but that in order for DHRS to continue its recommendation that the bid be awarded to Datamaxx, DHRS had to have the resumes prior to the awarding of the bid. DHRS considered it an error and a deficiency in the bid that the resumes were not furnished. Datamaxx, on November 6, 1986, advised DHRS in a letter to Charles Ray that it would submit a plan which would address, among other things, service personnel resumes by November 17, 1986. DHRS could not have considered Datamaxx's letter of November 6, 1986, in evaluating whether Datamaxx was a responsive bidder, because that letter was not received until after DHRS had already found Datamaxx to be a responsive bidder and recommended that the contract be awarded to Datamaxx. Had Datamaxx not submitted the resumes prior to November 17, 1986, DHRS staff would have recommended that the award of the contract be withdrawn. The performance the State would receive under the contract would directly depend on the qualifications of the persons performing the service and the maintenance, and the resumes would be the only source of information regarding the qualifications of the personnel.
Recommendation For all of the foregoing reasons, it is recommended that a final order be entered to the following effect: Concluding that the bid submitted by Datamaxx USA Corporation on Bid No. 86 ATM should be rejected on the grounds that it is not responsive, Concluding that the bid submitted by Burroughs Corporation should be rejected on the basis of Rule 13A-1.002(3), Florida Administrative Code, and, Providing for the agency to issue a second invitation to bid/request for proposals or take other action provided by Rule 13A-1.002(3), Florida Administrative Code. DONE AND ENTERED this 25th day of June 1987, at Tallahassee, Florida. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 25th day of June 1987. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 86-4460B1D The following are my specific rulings on each of the proposed findings of fact submitted by both parties: Findings proposed by Petitioner Paragraphs 1 through 19 are accepted with a few minor editorial modifications. The first two lines of paragraph 20 are rejected as redundant. The remainder of paragraph 20 is accepted. Findings proposed by Respondent Paragraphs 1 and 2 are accepted in substance. Paragraph 3 is rejected as constituting unnecessary details. Paragraphs 4 through 7 are accepted. Paragraphs 8, 9, and 10 are rejected as irrelevant. Paragraph 11 is rejected in part as irrelevant and in part as contrary to the greater weight of the evidence. Paragraph 12 is accepted. Paragraph 13 is rejected as constituting irrelevant and unnecessary details. COPIES FURNISHED: Robert L. Powell Assistant General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, Florida 32399-0700 Edgar Lee Elzie, Jr., Esquire MacFarlane, Ferguson, Allison & Kelly 804 First Florida Bank Building Tallahassee, Florida 32301 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether the Department of Children and Families’ (“the Department”) intent to award the contract associated with Invitation to Negotiate No. 590:3161 (“the ITN”) to Midtown Centre Office, LLC (“Midtown”) was arbitrary or capricious, irrational, or otherwise contrary to the law.1
Findings Of Fact Based on the evidence adduced at the final hearing, the record as a whole, and matters subject to official recognition, the following Findings of Fact are made: The Parties The Department is the state agency charged with working “in partnership with local communities to protect the vulnerable, promote strong and economically self-sufficient families, and advance personal and family recovery and resiliency.” § 20.19(1)(a), Fla. Stat. (2019).3 Gateway owns a shopping center in Jacksonville, and Midtown has owned the Midtown Office Park in Jacksonville since September of 2019. The ITN The Department posted the ITN on October 9, 2019, in order to obtain leased space in Jacksonville for its ACCESS Storefront (“the Storefront”) and North Florida Customer Call Center (“the Call Center”) beginning March 1, 2021. The Storefront is expected to serve 350 to 400 clients a day and is currently located in Building D of Gateway’s Jacksonville shopping center. The Call Center is currently located in Midtown Office Park’s Brownett Building. The ITN set forth two options for prospective bidders. Option 1 sought a location of approximately 26,585 square feet to house the Storefront and the Call Center for 5, 7, or 10-year lease terms. Option 2 sought one location of approximately 11,091 square feet for the Call Center and a separate location of approximately 15,494 square feet for the Storefront. Option 2 also called for 5, 7, or 10-year leases. 3 Unless stated otherwise, all statutory references shall be to the 2019 version of the Florida Statutes. The ITN specified that the Department would evaluate and rank all submissions deemed responsive to the ITN. Those rankings would serve as the basis for one or more bidders advancing to “the short list” and being entitled to conduct negotiations with the Department. Section V of the ITN indicates that negotiations were to begin after the Department evaluated the initial replies to the ITN. The ITN’s stated goal was to “award a lease that best meets the needs of the State using a flexible, iterative process.” Therefore, the ITN established a process in which the Department had a great deal of flexibility in how it conducted negotiations with the short-listed bidders. For example, the ITN states that the Department “reserves the right to negotiate with all, one or none of the respondents in its sole discretion.” The ITN also states that the Department “has the right, at any time during the process, to reject any and all proposals that are not, in [the Department’s] sole discretion, in the best interests of the State.” The Department reserved “the right to seek clarifications, to request Reply revisions, and to request any information deemed necessary for proper evaluation of Replies.” The Department afforded itself “the right to negotiate different terms and related price adjustments if [the Department] determines that it is in the State’s best interest to do so.” While the ITN provided that “negotiations may be conducted serially by order of ranking or concurrently with all short listed [bidders],” the Department reserved the right to “expand the short list to include additional responsive Offerors for negotiation or change the method of negotiation . . . if it determined that to do either would be in the best interest of the State.” Also, the Department could “[s]chedule additional negotiating sessions with any or all responsive [bidders].” The ITN specified that, after the Department completed the initial negotiation session with the selected short-listed bidders, the Department, “in its sole discretion,” would “determine whether to hold additional negotiation sessions and with which [bidders] it [would] negotiate.” The ITN empowered the Department to “[t]ake any additional administrative steps deemed necessary in determining the final award, including additional fact- finding, evaluation, or negotiation where necessary and consistent with the terms of this solicitation.” Furthermore, any time after the initial negotiating session, the Department could require all responsive bidders to provide additional or revised written proposals addressing specific topics and “[d]ecline to conduct further negotiations with any [bidder].” The Department reserved the right to schedule additional negotiation sessions in order to finalize contractual terms with bidders identified in a Notice of Award. In addition, the Department could reopen negotiations with any bidder at any time prior to executing a contract or terminate negotiations with any or all bidders, regardless of the status of negotiations with those bidders. The Department could “waive minor irregularities when to do so would be in the best interest of the State of Florida.” The ITN defined a “minor irregularity” as a “variation from the terms and conditions of this ITN which does not affect the price of the Offer or give the [bidder] a substantial advantage over other [bidders] and thereby restrict or stifle competition and does not adversely impact the interest of the Department.” The ITN also contained a broad provision providing that: The Department reserves all rights described elsewhere in this ITN. The Department has sole discretion in deciding whether and when to take any of the foregoing actions, the scope and manner of such actions, the responsive [bidder] or [bidders] affected and whether to provide concurrent public notice of such decision. The end of the negotiation process could lead to the Department selecting one or more bidders “to submit a written best and final offer, to memorialize all agreements reached during negotiations and to extend additional benefits to the State.” As for the final selection, the ITN specified that: The [Regional Director] or her/his designee will approve an award that will provide the best leasing value to the State, based on the criteria in Section V.B.2, taking into consideration the recommended award by the negotiating team. In so doing, the [Regional Director] or his/her designee is not required to score the Offerors, but will base his or her recommendation on the criteria set forth above. If the [Regional Director] or his or her designee determines that two or more Replies most advantageous to the State are equal with respect to all relevant considerations, including price, quality, and service, the award will be made in accordance with Rule 60A-1.011, Florida Administrative Code and Section 295.187, Florida Statutes. The ITN set out a “general schedule” detailing key dates in the solicitation process and estimated time periods for when certain events would occur. For example, the initial schedule established December 9, 2019, as the deadline for bidders to submit their replies to the Department. The Department’s evaluators were scheduled to meet on December 16, 2019, and complete their evaluation of the replies. It was “anticipated” that the “short list” of bidders would be announced on December 19, 2019. Then, the “estimated time period for negotiation” would begin on December 20, 2019, and conclude on January 23, 2020. Finally, February 14, 2020, was the Department’s “estimated date for posting” it’s Notice of Intent to Award. During the course of this solicitation, the Department revised its general schedule multiple times via the issuance of addenda. For example, Addendum 3 was issued on December 6, 2019, and delayed by approximately one month all of the events following the opening of the initial replies to the ITN. Addendum 6 was issued on February 7, 2020, and extended the negotiation period with short listed bidders to February 21, 2020. Addendum 7 was issued on February 19, 2020, extending the aforementioned negotiation period to February 28, 2020, and the estimated award date to March 16, 2020. The Department authorized CBRE, Inc. (“CBRE”), the world’s largest real estate company, to act as its representative during the solicitation and negotiations. CBRE helps agencies structure bids so they draw as much interest as possible from prospective bidders. CBRE also assists with assembling the bid documents that agencies post to the State of Florida’s Vendor Bid System (“the VBS”). In addition to ensuring that offers are technically compliant with the terms of an ITN, CBRE handles negotiations with short-listed bidders and facilitates the receipt of the bidders’ BAFOs. CBRE assigned David Hulsey to be its lead person for the ITN, and Charles Johnson of the Department was his designated contact.4 The ITN was posted on the VBS on October 9, 2019. Any bidder objecting to any of the ITN’s terms, conditions, or specifications had 72 hours to file a protest, but no protest was filed. Five prospective bidders replied to the ITN. Gateway submitted two replies, each offering to lease space in Building A of Gateway’s Jacksonville shopping center. As noted above, the Department currently leases space for the Storefront in Building D in the same shopping center. Midtown submitted one reply which proposed leasing space in the Dew Building of its Midtown office park. The Department currently leases space for the Call Center in the Brownett Building of that office park. 4 Mr. Hulsey explained that CBRE does not recommend which bidder should receive the contract: “I don’t recommend anything. We don’t make any decisions. Once we finish with negotiations and test fits, we give that to the agency, and they make decisions and recommendations. We as tenant brokers don’t have the authority to make any decisions. We’re not on the evaluation teams, and we just, you know, that’s not part of the scope of our contract.” When asked if he made any recommendations in the instant case, Mr. Hulsey testified, “Absolutely not. I don’t have that authority, and quite frankly, we don’t care. We represent the state, so if bidder A, B, or C wins, we get paid. I have no inclination to – for one to win over the other. The only thing I care about is whoever wins can they get the funding through traditional lending or private equity, do they understand the scope of work and the cost associated with building out this space.” After receiving replies to the ITN, Mr. Johnson ranked the replies from highest to lowest based on the criteria set forth in the ITN. He then transmitted those rankings and a recommendation about which bidders should make the short list to the Regional Director overseeing the Jacksonville area. The Regional Director or his/her designee then selected the bidders with whom the Department (via CBRE) would commence negotiations. Gateway, Midtown5, and Timuquana Marketplace, LLC (“Timuquana”) advanced to the short list on January 13, 2020.6 Getting BAFOs from Gateway and Midtown The ITN specified that “[p]rior to final negotiation and selection of an Offer or Offers, a ‘test fit’ of the Proposed Space relative to the need may be required, the expense of which shall be borne by [the bidder].” The ITN defined a “test fit” as: the first attempt to show the proposed office space criteria on paper in the form of a preliminary space plan. The test fit determines if you can “fit” into a specific space or how much space you will actually need to build out the space. A test fit ensures that a prospective bidder understands the Department’s needs and will provide exactly what the Department is seeking.7 Even though the ITN stated that a test fit “may be required,” Mr. Hulsey considers test fits to be an essential part of the negotiation process: “I was trying to facilitate test fits, which are the basis for 5 Midtown earned the highest overall score. 6 The subsequent negotiations with Timuquana were not extensive because its proposed lease rates were substantially higher than those proposed by Gateway and Midtown. 7 Charles Johnson, the Department’s contact person for the ITN, testified that a test fit shows “where the seats are, and where the people are going to be sitting. Where . . . rooms are located, restrooms, [and whether the contemplated arrangement is] conducive to fire codes.” negotiations, so that we could get to a final best and final number and feel confident that they could build it out.” Adam Landa, Gateway’s point-of-contact for this bid, contacted Mr. Hulsey about revising Gateway’s offer so that it would be based on Building D rather than Building A. Mr. Hulsey responded via a February 6, 2020, email stating that the Department was receptive to keeping the Storefront in Building D, but Mr. Hulsey still wanted Gateway to submit a test fit: Adam, Per our conversation yesterday afternoon, [the Department] is open to the idea of keeping the store front in their current location at Gateway, with some modifications to the lobby and an expanded area of approximately 3,000sf. [The Department] is requesting that you hire an architect/space planner to complete a “high level” test-fit to show how the storefront and call center fits into the available vacant space adjacent to the service center. If your architect/space planner needs to meet with [the Department], I can set that up. The time period for negotiations ends tomorrow according to the schedule in the ITN; however, we are going to extend that timeframe for a couple of weeks to allow time for the test-fit process. If you have any questions, please contact me. Mr. Hulsey provided Gateway with the names of three architects who could perform the test fit.8 Mr. Hulsey contacted Gateway and Midtown on February 18, 2020, in order to determine when he could expect the first drafts of the test fits that 8 Mr. Hulsey wrote an email to Mr. Landa on February 10, 2020, relaying an architect’s contact information and stating he was “working to find you a couple more to reach out to.” Mr. Landa replied 10 minutes later thanking Mr. Hulsey and saying “[w]e will get right on it.” had been requested. Mr. Hulsey’s February 18, 2020, email to Mr. Landa asked: Any idea when we will see the first draft of a “high level” test fit? No one from [the Department] has been contacted by a space planner or ownership to give their input. We will be reaching the end of the period for negotiations this Friday and then the agency will make their decision. I would assume that you would like for [the Department] to see past the existing conditions before they make their decision. In lieu of a test fit, Mr. Landa submitted via email a “revised site plan” and what he referred to as “attached test fits” on February 18, 2020. Via the same email, Mr. Landa asked Mr. Hulsey to “please confirm if we can extend the negotiations by an additional week.” On February 22, 2020, Mr. Hulsey’s assistant notified Mr. Landa via email that “[t]he addendum to extend the deadline for negotiations on the Jacksonville ITN has been posted to VBS, please find a copy attached. The new deadline date is 2/28/2020.” Mr. Landa then transmitted the following email to Mr. Hulsey and his assistant on February 26, 2020: Per our conversation today, please see attached a revised site plan and proposed rental structure for the two proposed spaces in Building D at Gateway Town Center. Please note that we provided your client an approximate 1,000 square feet of additional space for non-rentable items such as bathrooms, etc. The proposed rentable square feet will be based on your client’s required 26,585 total square feet plus approximately 3%, which comes to approximately 27,382 total square feet. To clarify, [the Department] will be paying gross rent on the basis of its required 27,382 square feet, as seen on the proposed rental structure attached.[9] The documents transmitted by Mr. Landa did not amount to an actual test fit because they did not show how the interior of the spaces would be arranged or anything else contemplated by the ITN’s definition of “test fit.” Mr. Hulsey was frustrated with Gateway’s failure to provide him with a test fit, testifying that: Q: Gateway never provided you with a test fit, did they? A: No. We tried – we tried. I was so frustrated with Mr. Landa that I called David Berger and expressed my frustration. And said, David, I don’t think that Mr. Landa understands what a test fit is, because I asked for a test fit and he sends me a site plan with the vacant space that they have in the center. And I was just pulling my hair out trying to communicate. Q: Okay. And I guess, based on what you just said, would it be fair to say that you really bent over backwards trying to get a test fit from Gateway? A: I went beyond. Above and beyond. If the tables were turned and Gateway was awarded this, Midtown would probably be protesting saying that 9 Mr. Landa also transmitted the substance of this email to Mr. Hulsey via a text message sent on February 26, 2020. I showed favoritism to Gateway, because I helped them get in touch with some architects.[10] In response to an inquiry from Mr. Landa asking if he needed anything else, Mr. Hulsey emailed the following to Mr. Landa on March 6, 2020, well after the February 28, 2020, negotiation deadline: We have everything we need at this point. [The Department] is reviewing all of their options and hope to make an award according to the revised schedule of events in the ITN. If they request additional information, I will reach out to you. 10 Mr. Hulsey had relayed his frustration to David Berger, one of Gateway’s partners: Q: And did David Berger call you during this procurement at all, to your recollection? A: Yeah. If David needed something, you know, he would call; and if I didn’t answer, he would text and say, “Call me,” and I’d text and say, you know, “I’m tied up,” “I can’t,” “I will,” but I would rather have reached out. In fact, when I was not getting the responsiveness that I needed from this Adam Landa, I would call David and say, “David, I don’t know if this Adam guy understands what a test fit is.” I said, “I’ve given him three names of three architects and their phone numbers, which is not my responsibility, but Adam told me ‘We don’t have an architect in Jacksonville.’” So I did his work for him and we still never got a call or meeting setup with the architects. Well, I called David and expressed my frustration that we weren’t getting what we needed because I knew David knew the process because I just finished – he was just finishing up $250,000 in work for DOC. Q: Do you recall when in time approximately those conversations were? Were they before or after the BAFO? A: Oh, before. There’s probably -- I don’t even know how many calls, you know. You – I’d need something, I’d ask for it and ask for it. Finally, I wasn’t getting it, I put it in writing in an email towards the end of February, I guess, you know, “When are we going to get this?” so at least I was on record as asking for it for both properties. I was like, you know, “Come on, Guys, I can’t keep pushing this out more and more. We’re trying to help you both and at some point we’ve got time restraints.” In light of Gateway’s inability to provide the test fit requested by Mr. Hulsey, his decision to effectively cease negotiations with Gateway was justified. Mr. Hulsey had a different experience obtaining a test fit from Midtown. His February 18, 2018, email to Daniel Mehaffie, Midtown’s lead negotiator for this bid, stated the following: Any idea when we will see the first draft of a “high level” test fit? We will be reaching the end of the period for negotiations this Friday and then the agency will make [its] decision. I would assume that you would like for [the Department] to see past the existing conditions before they make their decision. Mr. Mehaffie responded to Mr. Hulsey’s email on February 18, 2020, by reporting that the test fit had revealed a problem with the available space in the Dew Building. Mr. Mehaffie proposed that the problem could be substantially alleviated by reducing the size of the Department’s cubicles: Thanks for speaking with me today. As we discussed, I’d like to extend the deadline 1 week so we should hopefully be able to wrap everything up with the test fit. I’d like to confirm that we are ok to reduce the cubicle size to 6x6 as opposed to 6x8 to save [approximately] 2,000 sf on the 1st floor. Based on John’s visit to the storefront operation, their cubicles are 6x6 so they wouldn’t actually be losing space from their current outfit. Please confirm this will be okay so I can inform our architect who is working on the test fit for us. Mr. Hulsey responded on February 19, 2020, by stating he did not anticipate that a one week extension of the February 21, 2020, negotiation deadline would be problematic. Mr. Hulsey copied Mr. Johnson on the email and asked if he consented to Midway basing its test fit on the Department using 6x6 cubicles. The Department issued Addendum 7 on February 19, 2020, extending the negotiations deadline to February 28, 2020, and the estimated contract award date to March 16, 2020. The terms of the ITN and the greater weight of the evidence demonstrate that the “the initial negotiation session” referred to in the ITN concluded on February 28, 2020. After transmitting a revised test fit for the Dew Building to Mr. Hulsey on February 27, 2020, Mr. Mehaffie emailed Mr. Hulsey on February 28, 2020, stating that “[a]fter deliberating and taking all things into consideration with the owners, we’d like to propose the Dew Building for a 5 yr lease with 3% annual escalations, with a 5 yr option to renew (also with 3% escalations) and a base year price of $20.44.” Midtown’s revised offer presented two issues. The test fit submitted on February 27, 2020, indicated there was still some uncertainty about the Dew Building having enough space to accommodate the Storefront and the Call Center. Also, Mr. Mehaffie’s February 28, 2020, email only offered a 5-year lease option while the ITN requested leases of 5, 7, or 10-year durations. Even though the ITN indicated the Department would be willing to accept a 5-year lease option, Mr. Hulsey encouraged Midtown to offer 7 and 10-year lease options as well. He did so because: [m]y role is, whether or not his initial offer of a 5- year with a 5-year option, if you read the negotiation section in the ITN, yeah, probably would be accepted. But I had been directed to get a 5-,7- and 10-year option. So whether or not the agency accepted this one, I was going to provide for the agency what was requested in the ITN. What they did with it, that’s out of my hand. We don’t make decisions. Mr. Hulsey also felt the Midtown offer was incomplete: I felt like it was incomplete. So, you know, we reach out. People that have not been involved in the ITN process, we are there to assist and facilitate getting the best deal for the State of Florida. And I took as many liberties with Gateway as I did with Midtown to help out. Midtown ultimately realized that leasing the Dew Building to the Department was not going to be sufficiently profitable. Therefore, Midtown transmitted a revised proposal via email to Mr. Hulsey on March 3, 2020, proposing to house the Storefront on the first floor of the Brownett Building while keeping the Department’s Call Center on the Brownett Building’s second floor. The revised proposal included leasing options of 5, 7, and 10 years and the rate per square foot for each year. When accounting for the charges associated with the option years, Midtown’s revised offer made it the lower cost vender for each time period. Even though the Department was already in the Brownett Building and there were no concerns about space given the Brownett Building’s size, Mr. Hulsey still required Midtown to submit a new test fit based on the Brownett Building: With Midtown, I’d never worked with this ownership group, and when they submitted their initial offer they estimated – if you look at their Attachment I where we have the rental rates broken down – they estimated the cost for their construction would be $250,000. We have a half million square feet. I know what it costs, and I didn’t feel comfortable that they had a clear understanding of what this cost was going to be, so I raised the bar for Midtown very high to ensure that they understood the scope of work and that they were going to be required to build it out according to the agency specification. And, you know, the worst thing you can do in the world is get four months down the road with construction documents, lease documents. Time is clicking away, and somebody all of a sudden says, oh, wait a minute, we didn’t realize what this was going to cost, we’re going to have to come back and retrace the deal. We don’t do that. So the more clarity that we can get at the front end, the fewer problems we have at the tail end. A test fit based on the Brownett Building was emailed to Mr. Hulsey and the Department on March 25, 2020. The Department Intends to Award the Contract to Midtown Mr. Hulsey’s assistant transmitted spreadsheets on March 9, 2020, to Mr. Johnson listing the BAFOs for Gateway, Midtown, and Timuquana.11 Mr. Hulsey called him later that day and expressed no preference for any of the BAFOs.12 On March 29, 2020, Mr. Johnson wrote the Notice of Intent to Award the contract to Midtown “in order to establish final contract terms and conditions, to become the lessor of office space for the Economic Self Sufficiency Program.”13 The Department’s Notice of Intent to Award was posted on the Vendor Bid System at approximately 3:30 p.m., on March 30, 2020. Mr. Johnson was very familiar with Gateway’s Building D and Midtown’s Brownett Building because the Department was already leasing 11 The spreadsheets referred to the addresses of the buildings that Gateway and Midtown had originally proposed, Building A for Gateway and the Dew Building for Midtown. However, the greater weight of the evidence established that Mr. Hulsey’s assistant erred by not updating the addresses to reflect the new buildings being offered by Gateway and Midtown. The Department was well aware that Gateway’s final offer was based on Building D and Midtown’s final offer was based on the Brownett Building. 12 Timuquana’s bid was far less desirable than the ones submitted by Gateway and Midtown. As a result, Mr. Hulsey did not request a test fit from Timuquana because he did not want to require Timuquana to needlessly spend money. 13 Mr. Johnson made the decision for the Department to post the Notice of Intent to Award the contract to Midtown. Gateway’s protest brought a halt to the contract award process. those buildings. In light of that unique situation, the non-price evaluation criteria in V.B.2 of the ITN (such as location and parking) were not at issue, and price properly became the key factor in deciding between Gateway and Midtown’s offers: Q: When did you – did you ever make a recommendation to select the Brownett Building? A: Actually, no. This [bid protest] stopped me from it. Q: Do you provide any information on the criteria other than cost to the people in the chain of command who are making the decision? A: No. Not really. I have a contact, a person that I work really closely with in Tallahassee. He’s been around for quite a while. He knows these areas. We were in a unique situation here. We had two top contenders, and we were in both of them. While Mr. Johnson’s decision was largely based on price, he did not ignore the other criteria set forth in the ITN: Q: And when you made your recommendation, you were familiar with both the Gateway shopping center and Midtown, because [the Department] had been renting from them for a number of years, right? A: Both of them, yes. Q: And you had been there, you had done visits. I mean, what might be described as intimately familiar with these locations? A: Yes, sir. Q: And so things such as when you made your recommendation, you were aware of things such as the location, the parking, the facility’s present condition, those sorts of things, you were aware of those when you were making your award decision, weren’t you, sir? A: Yes, sir . . . Q: My point is, rate was very important to you in your award decision, wasn’t it sir? A: Oh, yes. Q: But it wasn’t blind to all of these other factors or criteria, right? You were aware of those? A: Oh, no. If I had not – if I had not been paying one or the other for many years of rent, I would have been looking at it a little differently. You know, if I had no history with them. Q: Okay. And your history gave you knowledge with regard to all of these other factors that you were aware of when you were making your award decision; it that correct? A: Yes, sir. Gateway’s “Hail Mary” Over a month after the deadline for transmitting BAFOs and approximately 15 minutes after the Department posted the Notice of Intent to Award on the VBS, Gateway transmitted an offer to build out Building D and other unused space for $16.00 per square foot on a 5-year lease term. That represented an $8.00 per square foot drop from the lowest rental price proposed in its preceding offer. The March 30, 2020, email from Mr. Landa to Mr. Hulsey stated the following: We have been trying to contact you and [the Department] to review and negotiate our response to ITN 590:3161. Unfortunately, we have been unable to connect, perhaps due to the situation at hand with the coronavirus. Our model has changed due to lowering costs and interest rates, and we have greater flexibility to modify the proposed gross rents and agree to a 5 year lease. We have been trying to meet with you and [the Department] to negotiate gross rental rates in good faith, and we have not received a date/time to do so. We understand that negotiations with us as an offeror [are] contemplated by the Bid Documents. Also, we have not gotten any feedback from [the Department] on our response to the ITN. We are anxious to do so, and we hope [the Department] finds the attached and below revisions to be compelling. I refer you to the attachments to this email. In summary, we propose that the Landlord will be responsible to build out the expansion to [the Department]’s current space and propose that [the Department] pay a gross initial rent of $16.00/square foot on approximately 11,814 square feet. Additionally, we propose that the Landlord will be responsible to build out the approximate 17,793 square feet and that [the Department] shall pay $16.00/square foot gross rent only on the basis of approximately 15,568 square feet. Therefore, the Tenant will have an approximate 2,225 square feet of additional space for free (which would cover non- rentable items such as bathrooms, etc.). So, the Tenant will pay a gross rent on the basis of approximately 27,382 total square feet, which is based on your required 26,585 total square feet plus 3%. As you can see, under our revised proposal, the Landlord will build out both of the Tenant’s spaces, and the Tenant will save in gross rent approximately $1,368,873.86 for the total initial lease term, $4,539,233.58 for the total option term and $5,908,107.44 for the total initial lease term and total option term combined. Testimony from James Goldsmith, a partner and president of Gateway, indicated this offer was an attempt to persuade the Department to reopen negotiations: Q: And how did Gateway’s offer of the D building in this email come about? A: We were – after submitting our Building A, we were expecting to get some negotiation from [the Department]. Not having heard anything, having got an email that they were delayed for COVID, we were concerned that something was going on. We just had an inkling that things were not going right, or our bid was not received well, because we had no negotiation. When someone says they’re going to negotiate with you, you expect them to get back to you. So in an effort to prod the process, I suggested a week or so before, two weeks before, we start working on some numbers and see maybe we can – I don’t know if it was legal or not, or proper, but I would say let’s get to Building A, but if Building A is not going to work for you, here’s what we can do in Building D. And it was just a Hail Mary trying to get him to come to the table, but we didn’t know whether it would be effective or not.[14] As explained in the Conclusions of Law below, Gateway has not carried its burden of demonstrating that the Department’s intended award to Midtown is arbitrary or capricious, irrational, or otherwise contrary to the law. 14 Section 120.57(3)(f), Florida Statutes, barred the Department from considering this final offer from Gateway. The statute provides, in relevant part, that “[i]n a protest to an invitation to negotiate procurement, no submissions made after the agency announces its intent to award a contract, reject all replies, or withdraw the solicitation which amend or supplement the reply shall be considered.”
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Families enter a final order affirming the Notice of Intent to award the contract associated with Invitation to Negotiate No. 590:3161 to Midtown Centre Office, LLC. DONE AND ENTERED this 31st day of August, 2020, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL 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 Clerk of the Division of Administrative Hearings This 31st day of August, 2020. COPIES FURNISHED: Cynthia J. Miller, Esquire Sweetapple, Broekeer & Varkas, P.L. Suite D306 4800 North Federal Highway Boca Raton, Florida 33431 (eServed) Lacey Kantor, Esquire Department of Children and Families Building 2, Room 204Z 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed) Robert H. Hosay, Esquire Foley & Lardner LLP Suite 900 106 East College Avenue Tallahassee, Florida 32311 (eServed) Benjamin J. Grossman, Esquire Foley & Lardner LLP Suite 900 106 East College Avenue Tallahassee, Florida 32301 (eServed) Mallory Neumann, Esquire Foley & Lardner LLP 106 East College Avenue Tallahassee, Florida 32301 (eServed) William D. Hall, Esquire Dean Mead Suite 815 215 South Monroe Street Tallahassee, Florida 32301 (eServed) Daniel Ryan Russell, Esquire Dean, Mead & Dunbar Post Office Box 351 Tallahassee, Florida 32302 (eServed) John L. Wharton, Esquire Dean, Mead & Dunbar Suite 815 215 South Monroe Street Tallahassee, Florida 32301 (eServed) Cindy A. Laquidara, Esquire Akerman LLP Suite 3100 50 North Laura Street Jacksonville, Florida 32202 (eServed) John A. Tucker, Esquire Foley & Lardner, LLP Suite 1300 One Independent Drive Jacksonville, Florida 32202 (eServed) Lacey Kantor, Agency Clerk Department of Children and Families Building 2, Room 204Z 1317 Winewood Boulevard Tallahassee, Florid a 32399-0700 (eServed) Chad Poppell, Secretary Department of Children and Families Building 1, Room 202 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed) Javier Enriquez, General Counsel Department of Children and Families Building 2, Room 204F 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed)
Findings Of Fact During March 1988, the Respondent issued an Invitation to Bid by which it sought to lease 17,973 net usable square feet of office space to be located within a specified geographic area in Tampa, Florida, under a nine year lease with two additional three year option periods. This Invitation to Bid is referred to as Lease Number 590:1927. Three bids were received in response to the Invitation to Bid, and they were opened on May 13, 1988. Bids were received from the Petitioner, 8900 Centre, Ltd., and the Allen Morris Management Company. All bidders were determined to be responsive to the Invitation to Bid. Despite the fact that petitioner submitted the lowest bid, Respondent notified Petitioner by letter dated June 10, 1988, of its intent to award Lease Number 590:1927 to 8900 Centre, Ltd., as the lowest and best bidder. Petitioner has timely filed its protest seeking review of that decision. It is undisputed that Petitioner submitted the lowest bid. For the first year of the lease, Petitioner bid $7.85 per square foot, while 8900 Centre bid $7.95 per square foot. Thereafter, Petitioner proposed a yearly increase of 50 cents per square foot, reaching $11.85 per square foot in the ninth year of the lease, while 8900 Centre proposed annual increases of approximately 75 cents, reaching $14.00 per square foot in the ninth year. This equates to an actual dollar difference over the nine year term of approximately 185,000. However, using a present value methodology and a present value discount rate of 8.81 percent referred to on page 17 of the bid submittal form, the present value difference in these two bids is approximately $1,000 per month, which would result in a present value difference between Petitioner and 8900 Centre of approximately $108,000 over the nine year period. Neither the Invitation to Bid, bid specifications, nor the actual bids were offered into evidence. One page of the bid submittal form, designated as page 17 of 18, was offered and received in evidence. This portion of the bid submittal form states that the "successful bid will be that one determined to be the lowest and best." It also sets forth evaluation criteria, and assigns weights to each criteria. The evaluation criteria include associated fiscal costs (35 points), location (40 points) and facility factors (25 points) . A synopsis of bids was also offered and received in evidence showing the points awarded to each bidder by the Respondent's bid evaluation committed. Out of a possible 100 points, 8900 Centre received 95.17 points, while Petitioner received 82.25 points and the Allen Morris Management Company received 70.67 points. Petitioner asserts that the members of the evaluation committee were not qualified or knowledgeable in basic construction, design and engineering principles, and therefore could not competently evaluate the bids submitted. However, Petitioner did not offer competent substantial evidence to support this contention. Only the chairperson of the committee, Susan Jennings, was called to testify, and she appeared thoroughly knowledgeable in the bid process, the needs of the agency, the bid requirements and the representations made to the committee members by each bidder, including Petitioner, when the committee made its site visit to each location. Since the actual Invitation to Bid, bid specifications, and evidence about the other committee members were not introduced, it is not possible to know what the specific duties of the committee were, how they were to carry out their duties their qualifications and training, and whether they failed to competently carry out these duties, as alleged by Petitioner. Despite Petitioner's lower bid, Respondent awarded this lease to 8900 Centre, Ltd., based upon the evaluation committee's determination assigning 8900 Centre the highest number of evaluation points. Out of a possible 35 points for fiscal costs, Petitioner received 34 and 8900 Centre received 31.5. Thus, Petitioner's status as low bidder is reflected in the points awarded by the committee. Since neither the bid invitation or specifications were introduced, no finding can be made as to whether the difference between these two bidders comports with any instructions or directions provided by the agency to potential bidders, or whether this difference of 2.5 points on this criteria reasonably reflects and accounts for the dollar difference in these two bids. Petitioner received 34.75 points out of a possible 40 points on the general evaluation criteria "location," while 8900 Centre received the full 40 points. Within this criteria, there were three subcategories, and on the first two subcategories (central area and public transportation) there was an insignificant difference of less than one-half point between Petitioner and 8900 Centre. The major difference between these two bidders which accounts for their significant difference on the location criteria, was in the subcategory of environmental factors, in which Petitioner received 15.17 points and 8900 Centre received the full 20 points. Petitioner did not present competent substantial evidence to discredit or refute the committee's evaluation in the subcategory of environmental factors. To the contrary, the only testimony from a committee member was that of Susan Jennings, and according to her, Petitioner failed to explain the availability of individual air conditioning and heating controls, or the possibility of separate program entrances, which could be made available under its bid. Although Petitioner sought to explain at hearing that these desires of the agency could be accommodated in its bid, there is no evidence that such an explanation was provided in its bid or during the bid process when the evaluation committee visited the Petitioner's site. The committee was aware, however, that 8900 Centre would provide individual heating and air conditioning controls, as well as separate outside entrances for the three programs which would occupy the leased space. Additionally, the committee was concerned, according to Jennings, that parking areas at Petitioner's facility were more remote and removed from the building entrance than at 8900 Centre, and were somewhat obscured by trees and shrubbery, thereby presenting a potential safety concern for employees working after dark. Finally, every employee would either have a window or window access at 8900 Centre, while it was not explained that Petitioner's site would offer a similar feature. Thus, Petitioner failed to establish that the evaluation committee erred in assigning a significantly greater number of points for environmental factors to 8900 Centre than to Petitioner. The evidence reflects a reasonable basis for this difference. The other significant difference between these two bidders was in the subcategory for layout and utilization under the evaluation criteria "facility." Petitioner received 13.67 points while 8900 Centre received a full 20 points. Jennings explained that the separate outside entrances leading directly into the three programs that would occupy this space was preferred to a single reception area for all three programs. Petitioner offered the single reception area in its bid and site visit presentation, while 8900 Centre made it clear that each program would have its own entrance. Since these programs do not have a receptionist position, and none wanted to give up a secretarial position to serve as receptionist for all three programs, the committee did not consider the single reception area entrance to be desirable. Additionally, Petitioner's facility was a two-story building, while 8900 Centre is a single story facility. Jennings explained that the committee considered a ground level facility to be preferable to a two story building, particularly since the Medicaid program was to occupy the major portion of this space. The Medicaid program would have to be split up at Petitioner's facility, either in two separate buildings or on two levels of the same building, while at 8900 Centre, Medicaid could be accommodated in one, single story building, with the other two programs in a second, single story building. Finally, parking at 8900 Centre was directly next to, and outside the entrance of the building, while Petitioner offered to make assigned spaces available in a general parking area which serves its entire 100,000 square foot complex. The parking offered by Petitioner is more remote than that offered by 8900 Centre, and would be less secure at night due to a greater distance from the building entrances and the parking lot. Thus, Petitioner failed to establish that the committee erred in assigning a significantly greater number of points for layout and utilization to 8900 Centre than to Petitioner. There is a reasonable basis for this difference, according to the evidence in the record.
Recommendation Based upon the foregoing, it is recommended that Respondent enter a Final Order dismissing Petitioner's protest to Lease Number 590:1927. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 9th day of December 1988. DONALD D. CONN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1050 Filed with the Clerk of the Division of Administrative Hearings this 9th day of December 1988. APPENDIX (DOAH Case Number 88-3765 BID) Rulings on Petitioner's Proposed Findings of Fact: Adopted, in part, in Finding of Fact 1, but Rejected in Finding of Fact 10, and otherwise as not based on competent substantial evidence in the record. Adopted in Finding of Fact 5. 3-5. Adopted in Finding of Fact 4, but Rejected in 7. 6-7. Rejected in Finding of Fact 8. Rejected in Finding of Fact 10, and otherwise as not based on competent substantial evidence in the record. Rejected in Findings of Fact 9 and 10, and otherwise as not based on competent substantial evidence. Rulings on the Respondent's Proposed Findings of Fact: Adopted in part in Finding of Fact 1, but otherwise rejected as not based on competent substantial evidence. Adopted in Finding of Fact 4. 3-4. Adopted in part in Findings of Fact 5 and 6, but otherwise rejected as not based on competent substantial evidence in the record of this case. Adopted In Findings of Fact 5, 7-10. Adopted in Finding of Fact 5. Adopted in Finding of Fact 7. Adopted in Finding of Fact 8. Rejected as irrelevant and unnecessary since the point difference in this subcategory is insignificant. Adopted in Finding of Fact 9. 11-12. Adopted in Finding of fact 10. COPIES FURNISHED: Michael V. Giordano, Esquire 7821 North Dale Mabry Suite 100 Tampa, Florida 33614 Jack Farley, Esquire W. T. Edwards Facility 4000 West Buffalo Fifth Floor, Room 520 Tampa, Florida 33614 Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Miller, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
Findings Of Fact The exceptions filed by FAS fail in several respects. Many of the exceptions overlap with each other or are outright duplicative. Many of them are immaterial. Few of them cite to any support in the record. Nor did FAS attach any transcript of the hearing to the exceptions. Most importantly, FAS's exception to the dispositive finding that the tardiness of the petition was unexcused flies in the face of the underlying facts established by the exhibits in the record, including those attached to the petition. FAS urges that it need not attach a transcript in the absence of an evidentiary hearing. Although this Final Order rules on the merits of the exceptions, FAS's assertion is unsound as a general proposition The law is clear that without a transcript there is no basis for overturning a hearing officer's findings of fact. The Department cannot substitute its interpretation of the facts unless a review of the whole record shows that the findings made by the Hearing Officer are not supported by competent and substantial evidence. See, e.g., Tuveson v. Florida Governor's Council on Indian Affairs, Inc., 495 So.2d 790, 793 (Fla. 1st DCA 1986), rev. denied, 504 So.2d 767 (Fla. 1987). Moreover, rule 17-103.200(1) of the Florida Administrative Code Specifically requires that "[a]ny exception disputing a finding of fact . . . be accompanied by a complete transcript of the hearing." The Department therefore must "reject exceptions not supported by a complete transcript." Chipola Basin Protective Group, Inc. v. Florida Department of Environmental Regulation, 11 F.A.L.R. 467, 470-71 (Fla. DER 1988); see Booker Creek Preservation, Inc. v. Florida Department of Environmental Regulation, 415 So.2d 750 (Fla. 1st DCA 1982) (upholding nonrule policy of the Department that exceptions not accompanied by complete transcript must be dismissed). FAS also overlooks the opportunity that it had at the hearing on the motion to introduce evidence on the timeliness of its petition. Accordingly, the rule against overturning findings without a transcript might by itself supply a sufficient ground for rejecting all the exceptions to the findings of fact in this case if the record did not contain sufficient other competent substantial evidence (including two excerpts from the transcript of another hearing containing testimony on the dispositive issue in this proceeding) on which to review the findings of the Recommended Order. In these circumstances, I have considered the merits of the exceptions and found them wanting on grounds other than the lack of a transcript. For clarity and conciseness, I have addressed the exceptions in a logical regrouping. One group relates to the dispositive issue whether the untimeliness of the petition was excused by the Department's alleged failure to keep a promise to mail notice to FAS of any other permits for the Key Island development. The other group consists of the remaining exceptions, on secondary issues. FAS fails to establish the validity of its exceptions to the finding that the Department never committed to provide FAS with mailed notice of all applications for permits relating to the Applicant's Key Island development. FAS had sought a finding that the Department had promised to provide such notice, as the linchpin of FAS's argument that the Department should be equitably estopped from asserting that the petition was untimely. The basis for FAS's contention that the Department made such a commitment was an excerpt from the transcript of the hearing on the sewer line permit. The text of that excerpt attached to the petition shows that counsel for FAS was well aware that the assurance given by the Department's representative Philip Edwards was limited to possible future modifications to the project at issue in that proceeding, if in Mr. Edwards' personal discretionary judgment the modifications were significant enough to warrant notifying FAS of them: Q So, as counsel for Petitioners at this point I still will not know as a result of what is going to be in your mind and your reaction to how they come in, whether or not I will have an opportunity to ever see what they design to eliminate some of the things that they have said can be designed out as problems based on my objections. Petition Ex. E, at 613 (transcript of hearing in sewer line permit proceeding) (emphasis added). In this excerpt, counsel for FAS expressed his concern about the subjectivity of the decision whether to notify or not but restricted his comments to the sewer line project at issue in that proceeding, referring to his own past objections to the design of the project (rather than future objections to other permits for the same development) and past statements of the Applicant's representatives in response to those objections. Mr. Edwards then stated the commitment at issue, referring only to modifications to the project then being considered in that hearing: A I can't tell you what the law required me to do but I can say that I would remember that there was a hearing on this particular issue and if something came up that I felt that you should be notified of, I certainly would be sending an intent to issue to [counsel for FAS] and the Audubon Society. Q So, it's a matter of your ultimate subjective decision as to what they come in with? Id. at 613-14 (emphasis added). On this record, I cannot overturn the finding that the Department agreed only to advise FAS of future modifications to the sewer line permit, rather than all future applications relating to the Applicant's Key Island development. If anything, this conclusion is reinforced by reading the longer excerpt from the same transcript provided by the Department as an exhibit to its motion to dismiss. Accordingly, I must reject all of FAS's exceptions on this point, including Exceptions 2.C, 2.E, 2.G, 2.H, 3.B, 4.A, and 4.B. Given that this finding of a lack of commitment by the Department to give FAS mailed notice determines the issue of equitable estoppel and therefore establishes that the lack of mailed notice of the treatment plant permit did not excuse the untimeliness of FAS's petition, the rest of the exceptions to the findings are irrelevant or immaterial. Several of the exceptions do, however, point out minor corrections to be made to the findings in the Recommended Order Based on my review of the entire record, the following three findings by the Hearing Officer are not accurately based on competent substantial evidence: Paragraph 1 of the Findings of Fact states that the Department issued the permit for the wastewater treatment plant on December 5, 1989. Paragraph 3 of the findings incorrectly states that the permit for the wastewater treatment plant issued on March 16, 1990, rather than January 2, 1990. Paragraph 5 of the findings states that FAS received its copy of the wastewater treatment plant permit from counsel for the Department. To correct the Recommended Order, I accept portions of Exceptions 2A, 2D, and 2F to the limited extent that I make the following three findings, to be substituted for the three set forth above, respectively: The record establishes only that the publication date of the notice of intent to issue the permit was December 11, 1989. The permit for the treatment plant issued on January 2, 1990. The record does not show the Source of FAS's copy of the permit. Nonetheless, FAS did not establish that any of these minor errors was material to the issues decided in this proceeding. therefore hold that these three errors were harmless, and I reject the remainder of FAS's exceptions to the findings of fact for the reasons already discussed. RULINGS ON EXCEPTIONS TO CONCLUSIONS OF LAW FAS's exceptions to the conclusions of law fare no better. Again, the dispositive issue rests on the finding that the Department made no commitment to mail FAS notice of all permits relating to the Applicant's Key Island development. The critical issue of law is whether the Department is equitably estopped from asserting the untimeliness of the petition. The Hearing Officer correctly set forth the three elements required to apply the doctrine of equitable estoppel: 1) A representation, 2) on which the person claiming estoppel reasonably relied, 3) to that person's detriment. See, e.g., State of Florida Department of Revenue v. Anderson, 403 So.2d 397 (Fla. 1981); State of Florida Department of Environmental Regulation v. C.P. Developers, 512 So.2d 258 (Fla. 1st DCA 1987). The finding that the Department did not make the representation on which FAS apparently relied precludes the application of equitable estoppel in this case. Accordingly, I accept the Hearing Officer's conclusions of law on equitable estoppel and reject the exceptions to them, specifically 5.A-F and 5.H-I. Exception 5.G asserts that the Hearing Officer failed to assume that the allegations of the petition were correct and imposed too light a burden of proof on the movants for dismissal. This exception overlooks that the question here is solely the untimeliness of the petition. The movants met their initial burden of showing its untimeliness under the statute and the rule. The burden then shifted to FAS to establish a basis for the affirmative defense of equitable estoppel as an excuse for its untimeliness. See Florida Department of Transportation v. J.W.C. Company, Inc., 396 So.2d 778, 789 (Fla. 1981) (after applicant makes prima facie showing of entitlement to permit, burden of going forward with evidence shifts to opponent to prove facts asserted in petition); Jarrard v. Associates Discount Corp., 99 So.2d 272 (Fla. 1958) (burden of proving affirmative defense of estoppel rests on party asserting it) This FAS failed to do. Assuming the allegations (including the exhibits) of the petition to be true, the petition shows on its face (in the transcript attached to it as Exhibit E) that the Department did not make the commitment alleged in the body of the petition. See 40 Fla. Jur. 2d Pleadings s 49 (1982) (under rule 1.130(b) of the Florida Rules of Civil Procedure, exhibit to pleading is a part of it for all purposes; under comparable federal rule, the terms of an exhibit are controlling over the allegations of the pleading to which the exhibit is attached). Exception 1 raises a related point, generally objecting to the granting of the motions to dismiss in the absence of an evidentiary hearing. I must reject this exception because no evidentiary hearing is necessary for a motion to dismiss, as a matter of law. Moreover, the record does not reflect that FAS ever attempted to obtain such an evidentiary hearing or to subpoena any witnesses. On the contrary, FAS's petition makes clear that its sole reliance for excusing its untimeliness is an asserted representation made by a Department representative at a prior hearing on a different permit. Clearly, the best evidence of whether the Department made a commitment at the hearing on the sewer line permit to give FAS mailed notice of all permits for the Applicant's Key Island development must come from the transcript of that hearing, pertinent excerpts of which were put into the present record by the parties without objection. This exception is therefore without merit. Exception 5.J points out that once the Hearing Officer concluded that there was an insufficient record basis to establish that FAS participated in this proceeding for an improper purpose (so as to justify an award of attorney's fees and costs under Section 120.59(6) of the Florida Statutes), there must equally be no basis for imposing any other Sanctions, under Section 120.57(1)(b)s of the Florida Statutes. Exception 5.K then objects to the Hearing Officer's retention of jurisdiction over the issue of sanctions. Under the section 120.57(1)(b)5, however, the Hearing Officer does have jurisdiction to issue the Final Order on Sanctions. The Department has no authority to disturb the Hearing Officer's decision on that issue. I therefore must reject these two exceptions. Exception 6 objects to the Hearing Officer's "focus only on the media publication" of notice as a point of entry. Although it is true that a person may have a different point of entry in certain circumstances, FAS failed to establish that such circumstances exist here. Given the lack of any basis for applying equitable estoppel against the Department or finding any other basis for granting FAS a point of entry to oppose the issuance of the treatment plant permit so long after the fact, I must reject this exception. Exception 7 vaguely asserts a denial of "procedural and statutory rights and . . . constitutional rights to due process and equal protection" without explaining with particularity how the Recommended Order causes such a denial. Given this vagueness and the failure of FAS to establish its excuse for the tardiness of its petition, there can be no denial of any such procedural rights, whether Statutory or constitutional. See Fla. Admin. Code Rule 17-103.200(1) (requiring Statement of basis of exceptions with particularity). I reject this exception. RULING ON REQUEST FOR ORAL ARGUMENT FAS has also requested oral argument before me in support of its exceptions. In Support of the request, FAS asserts no new ground of any merit. The thrust of the request seems to be that the environmental impacts of the development at issue and the question of the Department's notice practice in this case are of overriding importance, requiring oral argument and possibly the taking of testimony. FAS has presented ample argument in support of its position. No new avenues for argument appear in the request. As for the taking of testimony, the record shows that it would be unnecessary. It would also be inappropriate See, e.g., Henderson Signs v. Florida Department of Transportation, 397 So.2d 769 (Fla. 1st DCA 1981). In these circumstances, oral argument would be redundant. The request for oral argument is denied.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that petitioner's request for a hearing be dismissed with prejudice as being untimely. DONE and ORDERED this 21 day of June, 1990, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 21 of June, 1990. COPIES FURNISHED: Dale H. Twachtmann, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Joseph Z. Floridaeming, Esquire 620 Ingraham Building 25 S.E. Second Avenue Miami, Florida 33131 Carol A. Forthman, Esquire Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Kevin S. Hennessy, Esquire 2000 Palm Beach Lakes Boulevard Suite 900 West Palm Beach, Florida 33409 =================================================================
The Issue Whether the decision to reject all bids for Lease No. 800:0187 is illegal, arbitrary, dishonest, or fraudulent under the provisions of Section 120.57(3), Florida Statutes, or violates the terms of the Request for Proposal.
Findings Of Fact Prior to May 17, 1999, the Department issued a RFP for office space seeking to lease approximately 14,420 contiguous square feet of space located in Broward County, Florida. This lease, designated 800:0187 in this record, was to run for a basic term of seven years with three two-year renewal options. The RFP specified the lessor was to provide full services and 60 parking spaces. In response to the RFP, the Petitioner, Sunrise, and Intervenor timely submitted proposals. The space proposed by Petitioner complied with the requirements of the RFP. Additionally, the Petitioner's submittal was well within the Department's acceptable rate range. On May 17, 1999, the Department issued an intended award to Sunrise for lease 800:0187. Sunrise was deemed the lowest responsive bidder. All objections to the award to Sunrise were resolved or withdrawn. For reasons not clearly documented in this record, the Department withdrew its decision to award the lease to Sunrise. The agency action, posted on June 12, 2000, some 13 months after the initial posting, stated Sunrise had not performed and recommended Lauderdale as the second-ranked entity that had responded to the RFP. Both Sunrise and the Intervenor timely filed protests to the proposed award to Lauderdale. The Petitioner filed motions with the Department to dismiss and intervene in those protests. As of the date of the final hearing in the instant case, the Department had not resolved or referred those protests to the Division of Administrative Hearings. Instead, on July 24, 2000, the Department issued a notice stating it would reject all bids for lease 800:0187 and rescind the award to Lauderdale. In reaching this decision, the Department stated it "cannot determine its space needs until after the pending Department reorganization is complete." If the Department was being "reorganized" such reorganization would have been known to the Department on June 12, 2000. No legislative or administrative action was taken to require reorganization between June 12, 2000 and July 24, 2000. The Department determined that its decision of July 24, 2000, rendered the June 12 award to Lauderdale moot. The Petitioner, Sunrise, and Intervenor challenged the agency's decision to reject all bids. Section M of the RFP provides, in pertinent part: The Department reserves the right to reject any and all proposals when such rejection is in the best interest of the State of Florida. Such rejection shall not be arbitrary, but be based on strong justification. (Emphasis in original omitted.) Subsequent to the protests of the rejection of all proposals, Perry Anderson, a regional administrator for the Department whose region encompasses Broward County, drafted a memorandum dated September 22, 2000, to address the number of leases and unit requirements for service areas of Broward County. The proposals set forth in the memorandum have not been resolved. As of the date of the hearing, the Department did not present any definitive statement as to its leasing needs for Broward County or how and why the submittals for lease 800:0187 could not address the agency's need. The Department has not presented documentation for any agency plan or statutory mandate to reorganize or decentralize the office space encompassed by lease 800:0187. If decentralization is required, the Department has presented no studies to determine the location, service areas, or numbers of clients for such offices. Studies for demographics, travel times, accessibility to public transportation, client case loads, or how reorganization would better address such issues have not been presented. Moreover, the Department has not demonstrated how decentralization would be inconsistent with the award of lease space as designated by lease 800:0187. The only justification for the rejection of all proposals for lease 800:0187 was the alleged reorganization of the Department. The Department presented no factual information as to how the "reorganization" related to an emerging philosophy supporting decentralization or improved services to the client population.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Juvenile Justice enter a final order rescinding its decision to reject all proposals for lease 800:0187. DONE AND ENTERED this 27th day of July, 2001, in Tallahassee, Leon County, Florida. ___________________________________ J. D. 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 27th day of July, 2001. COPIES FURNISHED: Brian D. Berkowitz, Esquire Scott Wright, Esquire Office of General Counsel Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100 Robert A. Sweetapple, Esquire Sweetapple, Broeker & Varkas 165 East Boca Raton Road Boca Raton, Florida 33432 Daniel H. Thompson, Esquire Berger, Davis & Singerman 215 South Monroe Street Suite 705 Tallahassee, Florida 32301 A. Margaret Hesford, Esquire 5648 West Atlantic Boulevard Margate, Florida 33063 William G. Bankhead, Secretary Department of Juvenile Justice Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-3100 Robert N. Sechen, General Counsel Department of Juvenile Justice Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-3100
Findings Of Fact Nine bids were received for Contract E4571, Project/Job No. 99004-3516 ("E4571"). Petitioner's bid was timely received. Respondent opened bids on December 13, 1991. Respondent posted its intent to award E4571 to J & D Tropical Landscape Design on December 20, 1991. Section 1.2 of the Bid Specifications for E4571, as modified by the Special Provisions, states: A contractor's bid shall be in the form of a unit price for each unit expected to be accomplished. The Special Provisions to E4571 require each bidder to submit a single unit price for each pay item called for in the Bid Price Proposal. Item 4 in the Special "Provisions provides: It shall be the responsibility of the Contractor to submit to the Department A SINGLE unit price for each pay item called for in the Bid Price Proposal. The Contractor shall be responsible for his/her method of averaging. Failure to comply shall result in the Contractor's Bid Proposal being declared "Irregular" and such Bid Proposals will be rejected. (emphasis added) Petitioner's Bid Proposal was properly declared irregular and rejected by Respondent. Petitioner failed to comply with the requirements of Item 4 in the Special Provisions by failing to submit a single unit price for each pay item, by failing to correctly average a unit price, and by failing to state the unit price in words. The Unit Price Sheet on page 23 of the Bid Proposals contains the following table listing item numbers A582- 2 through A584-4. Petitioner listed item number A583 as follows: ITEM PLAN ITEM DESCRIPTION AND UNIT PRICE $ AMOUNTS NUMBER QUANTITIES UNIT PRICE (IN FIGURES) (Exten- (IN WORDS) sion Price) 3/ A583 4 200.000 TREES (8' TO 20, 85 20400 PLANT ' HEIGHT OR CLEAR TRUNK) @ DOLLARS CENTS The actual extension price 4/ for 200 trees at $85 per unit is $17,000 rather than the $20,400 stated by Petitioner in the table on page 23. The "Contract Total" stated by Petitioner in the bottom right corner of the table is $37,013.20. The "Contract Total" that should have been stated if Petitioner intended the extension price of item number A583-4 to be $17,000 would have been $33,613. The "Contract Total" listed by a bidder on the Unit Price Sheet is the unverified contract price. The actual contract price is determined by Respondent pursuant to the formula given in Section 1.3 of the Bid Specifications. Section 1.3 of the Bid Specifications foil E4571 states: The contract price is defined as the sum of the unit bid price times the planned work for each item as shown on the Unit Price Sheet. Petitioner would have been the lowest successful bidder irrespective of whether Respondent had replaced the extension price for item number A583-4 and the "Contract Total" stated by Petitioner with the actual extension price for item number A583-4 and the actual "Contract Total" . However, Respondent is precluded from doing so by Section 3-1 of the Standard Specifications For Road ,and Bridge Construction ("Standard Specifications"), published by the Florida Department of Transportation (1991) and by the Special Provisions for E4571. Respondent follows "Section 3-1 of the Standard Specifications for the purpose of evaluating bid proposals. Section 3-1 is used, in part, to determine the extension price for item numbers listed on the Unit Price Sheet. Section 3- 1 provides in relevant part: In the event of any discrepancy in the three entries for the price of any item, the unit price as shown in words shall govern unless the extension and the unit price shown in figures are in agreement with each other, In which case they shall govern over the unit price shown in words. Petitioner did not show the unit price in words for any item number on the Unit Price Sheet, including item number A583-4. There is a discrepancy in the three entries for item number A583-4 on the Unit Price Sheet. Petitioner failed to show the unit price for item number A583-4 in words, and the unit price and extension price are not in agreement. Under such circumstances, Respondent interprets Section 3-1 of the Standard Specifications as requiring that Petitioner's bid be declared irregular and rejected. Respondent's interpretation of Section 3-1 of the Standard Specifications is reasonable and is consistent with the mandate in Item 4 of the Special Provisions for E4571. See Finding 4, supra. Furthermore, in practice, the correct unit price of a pay item is necessary to process payment under the contract and the contractor must submit invoices based upon the pay items and unit prices listed in its bid. The bid specifications for E4571 provide that a bidder is responsible for his or her own averaging of a stated unit price, and that if a bidder fails to provide a single unit price for each pay item on the Unit Price Sheet the bid shall be declared "Irregular" and will be rejected. The requirement to provide a single unit price for each pay item was emphasized by Respondent at the mandatory pre-bid meeting. Petitioner's representative attended the mandatory pre-bid meeting. No challenges were made to the bid specifications by any bidder.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order dismissing the protest filed by Petitioner. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 20th day of February, 1992. DANIEL MANRY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (964) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of February, 1992.
The Issue At issue in this proceeding is whether the decision of respondent, Department of Transportation (Department), to award the subject bid to intervenor, The Walsh Group, Ltd., Inc. and Subsidiaries d/b/a Archer-Western Contractors, Ltd. (Archer-Western), comported with the essential requirements of law.
Findings Of Fact The bid process In June 1995, the Department of Transportation (Department) issued an invitation to bid (ITB), State Project Number 93280-3504, Contract Number E- 4866, for the repair and rehabilitation of the Royal Park Bridge, a two span, four leaf bascule bridge, which spans the Intercoastal Waterway and connects the town of Palm Beach to West Palm Beach, Palm Beach County, Florida. Prospective bidders were contacted through a bid solicitation notice, which was sent to prequalified contractors, and interested firms ordered bid packages, which included plans and specifications. The subject project was experimental, and was an effort to identify the most cost-effective means of repainting bridges that contained, inter alia, lead-based paint, a hazardous material, while minimizing exposure of workers and the public as well as the environment (the Intercoastal Waterway), to the hazardous materials. The technical specifications or capabilities of the equipment to be used to abrade and prepare the bridge surfaces for repainting, keeping in mind the objective of the project, were developed by the Department's consultant, Kenneth C. Clear, and are noted in section 560, subsection 1.01.1, of the specifications, discussed infra. At the time, Mr. Clear was aware of one system, the "Cavi-Tech" or "Cavi-Blast" method, a proprietary system devised by Cavi-Tech, Inc., that could comply with the technical specifications, but did not know of any other company that had a similar process. Consequently, in drafting the technical requirements at issue in this bid challenge, discussed more fully infra, he identified the "Cavi-Blast" system of Cavi-Tech, Inc., as capable of satisfying the technical requirements, and further provided, at the bidder's election, for the use of alternative equipment if it could be shown to meet the surface preparations standards described in the ITB. Pertinent to this case, Section 560 of the specifications, entitled Repainting Exposed Steel, at page 560-1 of the ITB, specified the following technical requirements for surface preparation equipment: Surface Preparation Equipment Surfaces shall be abraded and prepared for recoating using an energy enhanced water jet generated by equipment capable of sustained operation at pressures in excess of 17,000 psi. Nozzles shall operate using resonation and cavitation technology. Production rates shall be at least 600 square feet per machine and production shift in the case of full coating removal (CB-4 per section 1.2), and 1,500 square feet per machine and production shift for sweep- off blasts which remove all oil, grease, dirt, loose paint, loose rust, rust scale and loose mill scale, and profile the remaining paint (CB-1 per section 1.2). The equipment shall include closed-loop water handling and filtration systems capable of repeated reuse of blast water and on-site treatment of the water upon completion such that it is rendered non-hazardous. Abrasives, steel shot and/or chemical strippers shall NOT be used. The surface preparation equipment shall be capable of achieving the surface preparation standards described in section 1.2, and document ation of its successful use on at lest 10 similar bridge or industrial structures totaling at least 250,000 square feet shall be submitted with the bid. Additionally, detailed project documentation and air monitoring historical data from at least 5 projects in which paint containing a lead primer was completely removed without the use of negative pressure enclosures, shall be submitted with the bid. These data shall show conclusively that, on each of the projects, the lead exposure to individuals WITHOUT breathing apparatus located 5-feet and further from the water jet nozzle was less than the OSHA action level (i.e. the air qualified as non-hazardous, breathable air in accordance with Code of Federal Regulations 29 CFR 1926.62 "Lead") when the equipment was operated at full capacity for at least 8-hours. The Cavi-Tech, Inc., Inc. (2108 Moon Station Drive, Kennesaw, Georgia 30144; phone Number 404-424-4015; fax Number : 404-424-4009) "Cavi-Blast" system meets the above requirements. The ITB package did not require, apart from any implications that may be drawn from the foregoing provisions, that the bidder specify the type of surface preparation equipment it proposed to use, and no form was included with the bid package on which such election could be denoted. The bid package did include, however, a standard proposal to be executed by the bidder, which bound the bidder "to perform all necessary work, as provided for in the contract, and if awarded the Contractor [Bidder] to execute the contract within 20 calendar days after the date on which the notice of award has been given." The ITB further required a proposal guarantee, payable to the Department, of not less than five percent of the total actual bid, "which guarantee is to be forfeited as liquidated damages if . . . the Proposal is accepted [and] the Bidder . . . fail[s] to execute the attached Contract under the conditions of this proposal. " On August 17, 1995, after the pre-bid conference, the Department issued Addendum Number 1 to the ITB, which included the following clarification as to the painting specifications for the project: Surface preparation equipment requirements are specified in Section 1.01 of the painting specifications. Cavi-Tech, Inc. is indicated as a company having equipment and experience meeting the requirements of this specification section. Other companies meeting the requirements of Section 1.01 can bid on this project. In response to the ITB, the Department received five bids for the project. The lowest bid was submitted by Archer-Western, $2,868,816.35, and the second lowest bid was submitted by Coastal, $2,930,461.68. The three other firms that bid on the project were PCL Civil Contracts, Inc. (PLC), with a bid of $2,943,370.20, Gilbert Southern Corp. (Gilbert), with a bid of $2,967,928.10, and M & J Construction Co. of Pinellas County (M & J), with a bid of $3,274,867.17. The bid price proposal submitted by each bidder contained various items which were tallied to derive the total amount bid. Item Number A560 1 was for painting structural steel, and Archer-Western listed a price of $425,300, Coastal a price of $500,000, PCL a price of $350,000, Gilbert a price of $450,000, and M & J a price of $575,348.45. Pertinent to this case, while Archer-Western did secure a quotation from Cavi-Tech, Inc., for Cavi-Blast and coating services, as well as historical data regarding its use, it did not include such documentation with its bid. Consequently, the bid submitted by Archer-Western, as well as the bid of PCL, contained no information in response to subsection 1.01.3, regarding surface preparation equipment. Contrasted with those bids, Coastal, in what it perceived as the appropriate response to subsection 1.01.3, included information from Cavi-Tech, Inc., on the Cavi-Blast system. Gilbert and M & J likewise included documentation on the Cavi-Blast system. The Department, following its evaluation, deemed the five bids responsive, and on October 4, 1995, posted notice of its intent to award the contract to Archer-Western. Coastal timely protested the proposed award (DOAH Case No. 95-5702BID). On October 9, 1995, the Department notified all bidders that it was rescinding its notice of intended award and proposed to reject all bids. Coastal timely protested such decision (DOAH Case No. 95-5703BID).3 Finally, on October 24, 1995, the Department, following reconsideration of its position, resolved to rescind its rejection of all bids and, consistent with its initial decision, award the contract to Archer-Western. Coastal timely protested such award (DOAH Case No. 95-5701BID). The bid protest Here, Coastal contends that Archer-Western's proposal (bid) was not responsive to the ITB because it did not include documentation in response to subsection 1.01.3 of the ITB. By such failure, Coastal suggests Archer-Western failed to commit to using the Cavi-Blast system or identify an alternative system it would use and, therefore, its bid was at material variance from the ITB. That variance, Coastal avers, accorded Archer-Western the opportunity to reevaluate its bid, after bid opening, and then decide whether to adhere to is bid or refuse to abide its bid without penalty due to its non-responsiveness. Contrasted with Coastal's perception of subsection 1.01.3, the Department views that subsection, when read in pari materia with subsections 1.01.1 through 1.01.4, as only requiring documentations when the bidder proposes to use surface preparation equipment other than the Cavi-Blast system. Indeed, the Department observes, it would be superfluous to include documentation demonstrating that the Cavi-Blast system was capable of achieving the surface preparation standards when subsection 1.01.4 specifically states that the Cavi- Blast system meets requirements. Accordingly, where, as here, the bidder does not provide any documentation in response to subsection 1.01.3, the Department contends it may be fairly implied, based on the bidder's agreement in the proposal "to perform all necessary work, as provided for in the contract," that it has proposed to use, and is bound to use, the Cavi-Blast system. Consequently, the Archer-Western bid was, in the Department's opinion, responsive to the ITB. Reading the provisions of subsections 1.01.1 through 1.01.4 in para materia, it must be concluded that the Department's conclusion in this case is supported by logic, and that its decision to award the contract to Archer- Western did not depart from the essential requirements of law.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered dismissing Coastal's protests and, more particularly, its protest of the award of the subject bid to Archer- Western. DONE AND ENTERED this 26th day of February 1996 in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK, 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 26th day of February 1996.
The Issue The issue for consideration in this case is whether Respondent's license as a real estate salesperson in Florida should be disciplined because of the matters alleged in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the issues herein, the Florida Real Estate Commission was the state agency responsible for the licensing of real estate professionals, including salespersons, and the regulation of the real estate profession in this state. Respondent was licensed as a real estate salesperson and held license number 0464001. On November 10, 1992, Respondent, was a partner with his three brothers and one other individual in Mars Construction Company, a building contracting firm in the Tampa area. His primary duties with the firm consisted in sales of the company's buildings, and office management. He was not actively engaged in the practice of the real estate profession in any other capacity. At the time, as a result of circumstances arising in the aftermath of the hurricane which had recently struck in South Florida, the company was experiencing financial difficulties. At some point during the earlier portion of the year, Respondent and his then neighbor, Mr. Rivera, engaged in a discussion regarding a possibility of a loan from Rivera which would help with the company's financial plight. There is a difference in the testimony of Respondent and Mr. Rivera as to how this discussion came about. Mr. Rivera contends that Respondent approached him concerning the possibility of Rivera lending money to the Martinez’s. Respondent contends that Mr. Rivera, a retired gentlemen in his 80's, approached him and suggested that because he, Rivera, was only earning approximately 4 percent on his certificate of deposit investments, perhaps he could lend money to Respondent at the 12 percent interest rate which, it would appear, was the rate paid by the company to other private investors. Both agree that the discussion regarding a loan, regardless of who initiated it, took place in the yard outside the houses of the parties when Respondent was the next-door neighbor of Mr. Rivera. Respondent moved from that location in March 1992. Respondent also contends that he and one or more of his brothers, all of whom Mr. Rivera knew, took Mr. Rivera out to visit the sites of several of their construction projects, one of which was a duplex located at 6901 North Blossom Avenue, in Tampa. Mr. Rivera categorically denies ever having gone to visit any of the properties. Regardless of who approached whom regarding the initiation of the loan, or whether Mr. Rivera visited any of the company properties, the evidence is clear that Mr. Rivera agreed to lend the money and the loan was made by him to Respondent. When a $16,000.00 certificate of deposit owned by Rivera matured, Rivera gave that amount to Respondent on or about November 13, 1992, and received a promissory note in that amount. Slightly more that one month later, Rivera gave Respondent another $10,000.00 when a second certificate matured. At that time Respondent, along with his brother and business partner, Victoriano Martinez, executed a promissory note in the amount of $26,000.00, payable to Ishmael Rivera and Margaret Rivera, in trust for Alice Belin and Lorraine Tornes, the Riveras’ daughters. This promissory note was back dated to November 10, 1992, the date of the original loan of $16,000.00, and the note for that lesser amount was destroyed. The second note, in the amount of $26,000.00, also reflected that it was secured by a mortgage of even date on the Blossom Street property, but no such mortgage was ever prepared or executed. Respondent admits that no such mortgage was ever contemplated or issued, and Mr. Rivera agrees that there was no discussion of, nor did he expect, a mortgage on the property. The two checks reflecting the loan by Mr. Rivera were deposited to the account of Mars Construction with the Key Bank of Florida. The loan called for monthly payment of interest only in the amount of $260.00 each, and provided for a final payment of the entire principal amount on November 10, 1994. After the note was issued, Mr. Rivera went to the company office each month to pick up his interest checks. After several interest payments were made with checks drawn on the account of Mars Construction, some of which were not signed and others some of which were signed by Jesus Martinez, some by Respondent, some by Jose Martinez, and some by Victoriano Martinez, Mars Construction filed for bankruptcy and ceased making interest payments on the loan. Mr. Rivera was listed as a creditor of Mars Construction and the obligation to him, evidenced by the unsecured promissory note, was discharged. Respondent was not engaged in the practice of real estate at the time of or in any particular regarding the loan. He was acting in an individual capacity either for himself or on behalf of the company as a part owner thereof. The two checks reflecting the loan by Mr. Rivera were deposited to the account of Mars Construction with the Key Bank of Florida. Mr. Rivera contends that the loan he made to Respondent was a personal loan to Respondent and not to the company. Therefore, even after the bankruptcy by Mars, Mr. Rivera and his wife filed suit in Circuit Court against Felix and Victoriano Martinez, the two individuals who had signed the promissory note. The note does not make reference to Mars Construction as the borrower/obligor, but instead indicates Felix and Victoriano Martinez as the borrowers. In this regard, and regarding the listing of the Blossom Street property as security, Respondent contends that the note was prepared from a form in the company computer which was based on a generic form found in an office supply store. Though Respondent contends the loan was to the company, and though the interest payment checks were drawn on a company account, it is found that Respondent and Victoriano were personally liable to the Riveras as a result of their note. Neither filed an Answer to Mr. Rivera’s Complaint, and Default Final Judgment in favor of the Riveras was entered by the court on April 25, 1995. Because of the suit by Mr. Rivera, and because of the contingent liability he faced as a result of the company’s bankruptcy, Respondent subsequently filed a personal bankruptcy in which the judgment by the Riveras was listed as a claim. No payments, other than those made as interest by the company before its bankruptcy, were ever made by Respondent, or any other entity on his behalf, to the Riveras whose claim for $26,000 remains unsatisfied. Mr. Rivera remains convinced that Respondent used all or a portion of the loan in question for the purchase of the new house he now occupies. Records produced by Respondent, however, fail to support that claim. Respondent was able to trace the money expended on his new residence to a small amount of cash realized from the sale of his former residence, and to the proceeds of a private construction loan which was subsequently satisfied by a new loan from a financial institution to which Respondent remains obligated. Mr. Rivera, in his complaint to the Commission, alleged that Respondent is at least part owner of land in the Florida Keys, and is involved in a business in Miami. No supporting evidence was produced to confirm or validate these claims, and they are found to be without merit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Real Estate Commission enter a Final Order in this case finding Respondent guilty of acting in bad faith in a business transaction, reprimanding him, and placing his salesman’s license on probation for a period of one year under such conditions as the Commission deems appropriate. DONE AND ENTERED this 20th day of October, 1997, 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 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 20th day of October, 1997. COPIES FURNISHED: Geoffrey T. Kirk, Esquire Department of Business and Professional Regulation Division of Real Estate Post Office Box 1900 Orlando, Florida 32802-1900 Ronald R. Swartz, Esquire 18045 Jorene Road Odessa, Florida 33556 Lynda L. Goodgame General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Henry M. Solares Executive Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32308-1900
