Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence submitted and the entire record compiled herein, I hereby make the following findings of fact. In 1986 DHRS determined the need for a facility in Miami Beach in which to administer various programs, including but not limited to, economic services, food stamps, aged and elderly services and medicaid. In December of 1986 DHRS extended an invitation to bid (Lease No. 590:1802) to individuals or companies interested in providing the type of facility needed in Miami Beach. The Invitation to Bid and Bid Submittal Form for DHRS Lease No. 590:1802 stated that DHRS was seeking approximately 19,198 net rentable square feet of office space to lease within the City of Miami Beach. DHRS desired a ten year lease with a three year option, occupancy by November 1, 1987. January 20, 1987 was established as the bid closing date. The Invitation to Bid and Bid Submittal Form provided in relevant part as follows: Requirements for Bidders to Submit Bids. Control of Property - To submit a responsive bid a prospective lessor must meet one of the following qualifications: Be the owner of record of the facility. Be the lessee of the space to be proposed and present with bid, a copy of lease with documentation of authorization to sublease the facility. * * * (d) Submit documentation of an option to lease the facility with an authori- zation to inturn, sublease. * * * Existing Tenants If the offered space or any portion there- of will be covered by an active lease(s) at the stated availability date, written documentation by the tenant indicating acknowledgment of the bid and ability to vacate premises by the proposed date must be included with the proposal. * * * 14. Parking For this facility the department has determined that a minimum of 120 parking spaces are required to meet its needs. This parking is to be under the control of the bidder, off street, suitably paved and lined. * * * A minimum of 6 spaces of the 120 re- quired must meet the requirements of the Standards for Special Facilities for Physically Disabled, Chapter 13D-1, Florida Administrative Code. 28. Miscellaneous Requirements * * * (8) Bidders must have appropriate and pertinent zoning approval by bid opening date and this must be documented by the City of Miami Beach and such proof must be included as part of the bid submittal form. * * * Attachments Required to be Submitted with Bid Submittal for Existing Building * * * Floor Plan Site Layout * * * Documentation showing bidder as controller of property, if not owner of record. * * * Documented zoning approval from City of Miami Beach. * * * Definition of Terms * * * Existing Building - To be considered as existing, the entire space being bid must be dry and capable of being physically measured to determine net rentable square footage... * * * Evaluation of Bids 1. Bids received are first evaluated to determine technical responsiveness. This includes submittal on bid submittal form, inclusion of required information and date, bid signed and notarized. Non-responsive bids will be withdrawn from further con- sideration. * * * In response to the invitation to bid, four bidders, Procacci, Causeway, Alton Road and Rae Lin Realty (Rae Lin) timely submitted bids to DHRS. After bid openings, DHRS reviewed each bid and prepared an initial comparative synopsis. Upon initial review DHRS determined that Alton Road submitted the only responsive bid. Thereafter, DHRS allowed the three other bidders the opportunity to clarify certain "questionable" parts of their bids in an effort to determine if the bids were in fact non-responsive. After an evaluation of the bid proposals plus the information gathered in the "clarification process," DHRS concluded that the bids of Procacci, Causeway and Rae Lin were non-responsive and that the only responsive bid was that of Alton Road. Procacci's bid was found non-responsive due to an insufficient amount of net square footage and lack of control of parking spaces. Thirteen of the parking spaces offered by Procacci were municipal parking spaces with annual reservations. DHRS allowed Procacci the opportunity to re-measure and possibly re-adjust the square footage submitted in its bid. DHRS also allowed Procacci the opportunity to clarify its control over the municipal parking spaces. Procacci was unable to demonstrate that it could provide the minimum square footage required and could not provide any assurance or documentation that the City of Miami Beach would guarantee the municipal spaces for the full 10 year term of the lease. Procacci's proposal was non-responsive to the invitation to bid. Causeway's bid was found non-responsive because of lack of sufficient net square footage. Causeway was allowed the opportunity to submit floor plans adjusting and clarifying the net square footage contained in its proposal but failed to demonstrate that its proposal would provide the square footage required. Causeway's proposal was non-responsive to the invitation to bid. Rae Lin's bid was found non-responsive because of failure to submit the required zoning approval documentation for the existing building with its bid. Rae Lin was not allowed to clarify this aspect of its bid because zoning approval documentation for the existing building was required to be submitted by the bid opening date. Rae Lin's proposal was non- responsive to the invitation to bid. Alton Road's bid was responsive on its face at the time of bid opening. However, during the initial evaluation process, it was brought to the attention of DHRS that Alton Road might not have actual control over some of its proposed parking spaces. Alton Road was allowed the opportunity to clarify its ability to provide the parking spaces proposed in its bid package. Alton Road was able to demonstrate that it had control over at least 120 parking spaces as called for in the invitation to bid. DHRS found Alton Road's bid responsive in all other respects and gave notice to all bidders of its intent to award the lease to Alton Road, the lowest responsive bidder. Procacci and Causeway submitted timely formal written protests contending that Alton Road's bid is non-responsive. PARKING Alton Road's proposed facility was acquired pursuant to a lease with Potamkin Chevrolet, owner of the property. The lease between Alton Road and Potamkin guaranteed to Alton Road a minimum of one hundred and twenty parking spaces and, if necessary, exclusive right to other parking spaces on property in the proximate vicinity. After bid opening, DHRS was informed by Causeway that two of the parking spaces which Alton Road included in its bid proposal were leased by Potamkin to Causeway and not to Alton Road. During the clarification/evaluation process, Alton Road disputed Causeway's claim and also demonstrated that it's proposal could provide at least 120 parking spaces even if the two parking spaces in question were excluded. In addition, Potamkin owned much of the adjacent property and was bound by its lease with Alton Road to provide 120 exclusive parking spaces. The lease specifically provided that exclusive right to additional parking spaces on property located in the proximate vicinity would be provided if necessary. A portion of Alton Road's proposed parking spaces were being leased by Potamkin to an existing tenant, Miami Beach Wrecker and Towing Services, Inc., at the time of the bid submission. However, there was no evidence that any portion of the property offered by Alton Road would be covered by an active lease of Miami Beach Wrecker or any other tenant on the required availability date of November 1, 1987. The bid submittal form requires that at least six (6) of the one hundred and twenty parking spaces comply with the requirements of the Standards for Special Facilities for the Physically Disabled, Chapter 13D-I, Florida Administrative Code. A complete reading of the bid submittal form in light of Chapter 13D-I, Florida Administrative Code indicates that the invitation to bid contemplated that renovations would be necessary to comply with the handicapped parking specifications and that there was no requirement that the renovations or modifications be completed at the time of bid submission. Alton Road's bid proposal provided for the required six (6) physically handicapped parking spaces. A complete reading of the bid submittal form indicates that bidders were required to include zoning approval for the existing building with their packages but were not required to submit documentation regarding parking space zoning. This interpretation of the bid submittal form's requirements is further supported by the fact that none of the four bidders included documentation as to parking space zoning with their bid proposals and there was no evidence that such a requirement was ever applied to other DHRS bid projects. In its bid proposal, Alton Road submitted one hundred and twenty parking spaces under its control, off-street, suitably paved and lined as required in the invitation to bid. CONTROL OF THE PROPERTY Alton Road's proposed facility was acquired pursuant to a lease between Alton Road and Potamkin Chevrolet. The lease contains a 19 page addendum. Both the lease and addendum are signed by the vice-president of finance of Potamkin Chevrolet. The lease and addendum were executed on January 17, 1987. All signatures on the final page of the addendum are witnessed. The lease specifically states that the addendum is "attached hereto" and "made a part hereof." The bid submitted by Alton Road was responsive to the Invitation to Bid for DHRS Lease Number 590:1802.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that Department of Health and Rehabilitative Services project lease number 590:1802 be awarded to Alton Road Six Corporation. DONE and ORDERED this 15th day of July, 1987 in Tallahassee, Leon County, Florida. W. MATTHEW STEVENSON 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 15th day of July, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-1849BID & 87-1850BID The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner (Procacci) Adopted in Finding of Fact 4. Adopted in substance in Finding of Fact 5. Adopted in substance in Finding of Fact 5. Adopted in Findings of Fact 6, 7 and 8. Adopted in substance in Finding of Fact 6. Adopted in substance in Finding of Fact 7. Adopted in substance in Finding of Fact 8. Adopted in substance in Finding of Fact 9. Adopted in substance in Finding of Fact 10. Rejected as subordinate and/or unnecessary. Adopted in Finding of Fact 10. Adopted in substance in Finding of Fact 2. Rejected as misleading and not supported by the weight of the evidence. Rejected as a recitation of testimony and/or misleading. 15. Rejected as a recitation of testimony/evidence and/or misleading. Rejected as a recitation of testimony and/or misleading. Rejected as a recitation of testimony and/or subordinate. Rejected as subordinate and/or unnecessary. Rejected as misleading and/or subordinate. Rejected as not supported by the weight of the evidence. Rejected as misleading, subordinate and/or not supported by the weight of the evidence. Rejected as contrary to the weight of the evidence and/or misleading. Although Procacci was not afforded the opportunity to substitute other parking for the thirteen (13) municipal parking spaces included in its proposal, Procacci was provided the opportunity to demonstrate to DHRS that the municipal parking spaces would be guaranteed by the City of Miami Beach for the entire term of the lease. This, Procacci failed to do. Rejected as contrary to the weight of the evidence. Rulings on Proposed Findings of Fact Submitted by the Petitioner (Causeway) (a) Rejected as contrary to the weight of the evidence. Rejected as contrary to the weight of the evidence. Rulings on Joint Proposed Findings of Fact Submitted by the Respondents and Intervenor Adopted in Finding of Fact 4. Adopted in substance in Finding of Fact 5. Adopted in substance in Finding of Fact 5. Adopted in Findings of Fact 6, 7 and 8. Adopted in Finding of Fact 6. Adopted in Finding of Fact 7. Adopted in Finding of Fact 8. Adopted in Findings of Fact 6, 7, 8 and 9. Adopted in Findings of Fact 6, 7 and 8. Rejected as subordinate and/or unnecessary. Rejected as subordinate and/or unnecessary. Adopted in Finding of Fact 9. Adopted in Finding of Fact 10. Rejected as subordinate and/or unnecessary. Adopted in substance in Finding of Fact 10. Adopted in substance in Finding of Fact 2. Adopted in Findings of Fact 3 and 15. Adopted in Findings of Fact 3 and 15. Partially adopted in Finding of Fact 15, matters not contained therein are rejected as subordinate. Adopted in substance in Finding of Fact 15. Adopted in Finding of Fact 3. Rejected as subordinate and/or unnecessary. Adopted in Finding of Fact 3. Adopted in Finding of Fact 16. Adopted in Finding of Fact 17. Adopted in Finding of Fact 12. Adopted in substance in Finding of Fact 12. Addressed in Conclusions of Law section. Adopted in Finding of Fact 13. Adopted in substance in Finding of Fact 13. Adopted in substance in Finding of Fact 17. Adopted in substance in Finding of Fact 18. Adopted in substance in Finding of Fact 18. Addressed in Conclusions of Law section. Adopted in substance in Finding of Fact 6. Adopted in Finding of Fact 3 and 36. Adopted in Finding of Fact 3 and 36. Adopted in substance in Finding of Fact 14. Adopted in Finding of Fact 9 and 19. Addressed in Conclusions of Law section. COPIES FURNISHED: M. Carmen Dominguez, Esquire Robert Rich 401 North West Second Avenue Causeway Properties, Inc. Suite 790 160 Sunny Isles Blvd. Miami, Florida 33128 North Miami, Florida 33160 Louisa P. Maurer Pedro Munilla, Esquire Acting Administrator 1401 South West First Street HRS District XI Suite 210 401 North West Second Avenue Miami, Florida 33135 Room 939 Miami, Florida 33128 Gregory L. Coler Secretary Thomas Hinners Department of Health Procacci Real Estate and Rehabilitative Services Management Co. Ltd. 1323 Winewood Blvd. 3200 North Federal Highway Tallahassee, Florida 32399-0700 Suite 221-A Boca Raton, Florida 33431 John Miller, Esquire Acting General Counsel Pablo I. Lopez Department of Health and Facilities Service Mgr. Rehabilitative Services Suite 950 1323 Winewood Blvd. 401 North West Second Avenue Tallahassee, Florida 32399-0700 Miami, Florida 33138 Sam Power Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32399-0700
The Issue These proceedings arose as the result of a bid solicita- tion issued by Respondent, Division of Administrative Hearings (DOAH), whereby DOAH sought the lease of office space. DOAH disqualified two proposals submitted by Petitioner, Parkway- Oakland General Partnership (Parkway), and proposed to award the lease to Intervenor, American National Bank of Florida (American Bank). Parkway protested the disqualification of its proposals and the intended award. The Koger Company (Koger) also protested the intended award, but filed a voluntary dismissal prior to the final hearing in Case No. 88-3357BID. By separate order, this Hearing Officer has entered an order closing her file on Case No. 88-3357BID. The disputed issues are described as follows by the parties in their prehearing stipulation and at final hearing: 1. Whether Parkway bid an existing, dry and measurable building. 2. Whether American Bank bid an existing dry and measurable building. 3. Whether DOAH acted arbitrarily and capriciously by disqualifying Parkway's proposals and by evaluating American Bank's proposal. At final hearing, Parkway called Jack B. Tobin, Tony Benton, William M. Baldwin, and Al Rudolph as witnesses. Petitioner's Exhibits 1 through 3 were received into evidence. DOAH called Linda C. Spears, Mary V. Goodman, and Stephen F. Dean as witnesses. DOAH's Exhibits 1 through 2 were received into evidence and portions of the deposition of Marilyn Lawrence were read into the record. . American Bank called Donald L. Feather as a witness, The transcript of the hearing was filed on August ll, 1988, and the parties were to file Proposed recommended orders within ten days of the filing of the transcript. The parties’ Proposals have been addressed in the appendix to this recommended order.
Findings Of Fact Based on stipulations of the Parties, on the exhibits received in evidence and ‘on the testimony of the witnesses at the hearing, I make the following findings of fact: 1. DOAH issued a Request for Proposal (RFP) for over 2,000 square Feet of office space in Tallahassee, Florida. (Petitioner's Exhibits 1 and 2) ‘The RFP was prepared using the Department of General Services! (DGS) guidelines (TR 89) and DGS Porm BPM 4136, which is a solicitation format Prepared by DGS for use by all State agencies. (TR 123 and Rule 13M-1.015(3)(e)) 2. Parkway submitted three bid Proposals, two of which were disqualified by DOAH. American Bank submitted a proposal which was determined by the evaluation committee to be the lowest and best proposal. (Prehearing Stipulation) 3. One of the disqualified Proposals submitted by Parkway was known as the "Option Proposal." In this arrangement, DOAH was to continue occupying the space it was currently leasing until October, 1988 at which time, DOAH would move into Building "B" located at 2001 Old St. Augustine Road. (TR 18, 19, 86, and Pet. Exhibit 1) - 4. The other disqualified Proposal submitted by Parkway was known as the "Park Proposal." The Park Proposal was for 2001 Old St. Augustine Road, where two buildings called Building "a" and Building "B" were being constructed. Both buildings were identical in size, shape and total construction. (TR 28) ‘The Park Proposal submitted by Parkway contains two Photographs and four drawings. (Pet. Ex, 2) One of the Photographs depicts Building "A." (TR 34) Three of the four drawings relate to Building "B" and one of the drawings relates. to Building "A" and related site development. The Proposal never clearly identified a specific building at 2001 Old St. Augustine Road as being the building bid. However, during the evaluation committee's site visit at 2001 Old st, Augustine Road, a representative of the Parkway indicated Building "B" was the building proposed for lease by DOAH. (TR 98) 5. American Bank submitted a Proposal for the space located in a former bowling alley on Apalachee Parkway. This space is herein referred to as the old bowling alley. (TR 60) 6. Form BPM 4136, which is the bid solicitation document, contains the following requirement: The proposed space must be in an existing building. To be considered as existing, the space must be dry and capable of being physically measured to deter-— mine net rentable square footage at the time of bid Submittal. Renovations to bring the facility into compliance with all applicable Federal, State and local codes and regulations and/or to meet the desired arrangements are permitted, it (sic) carried out in accordance with prescribed Procedures. (Emphasis in original.) 7. DGS interprets the requirement of an existing building to mean that the building must be enclosed with flooring, a roof, and walls and that exterior doors and windows must be in Place or the building must be such that the exterior is enclosed so that it is dry in adverse weather. Additionally, the building must be capable of being measured by pulling a tape inside the building to determine the net rentable Square footage. (TR 116) The purpose of having the dry and measurable criteria is to distinguish between an existing building and one that is to be built or that is Partially complete. (TR 119) 8. On May 13, 1988, the date of the bid submittal, Building "B" was not an existing building. (Prehearing Stipulation) Building "A" had a roof, a Slab, and walls, which comprised 50 percent of the vertical Plane from the slab to the roof. The windows and exterior doors in Building "A" had not been installed on May 13, 1988, (TR 40-42, 96-97, 147) Building "a" had a four foot overhang but the testimony of Mr. Tobin that the Overhang prevented rain from entering the building is not credible, given the large amount of window space which was not enclosed. (TR 51) 9. On May 13, 1988, the old bowling alley had walls, a slab, and portions of the exterior walls were boarded over, possibly in the location of existing windows or window openings. (TR 63, 109, 133, 134) The roof did have a hole, which was approximately three feet in length and allowed water to leak into the building. (TR 118, 119) The interior of the old bowling alley was capable of being measured. (TR 67, 119) The old bowling alley is an existing building. (TR 118-119) 10. After the bid solicitation document was issued, representatives of the Parkway met with staff of DOAH, (TR 27, 91) A DOAH staff member advised Parkway representatives that Parkway could "bid the park," but it had to bid an existing building which was dry and measurable. (TR 46, 80, 93, 138, 139) ll. At the prebid conference, DOAH representatives advised a Prospective bidder, in the Presence of a Parkway representative, that in order for a building. to be considered for the contract, it must be existing and dry and measurable at the time the bids were submitted. (TR 94, 95) 12. At the time Parkway submitted its proposals, neither Building "A" nor Building "B" was an existing building as defined by the bid solicitation document. 13, At the time Parkway submitted its proposals, Parkway was negotiating with a Private company for the lease of Building "A" (TR 77,27) and Parkway entered into a lease for Building "A" with the Private company on dune 13, 1988. (TR 43, 45) Thus, even if Building "A" had -been an existing building at the time the bids were Submitted, it is not available for lease to DOAH. (TR 45)
Conclusions CASE NO. CASE NO. 88-3357BID 88-3358BID On September 1, 1988, the Hearing Officer who conducted a formal administrative hearing pursuant to Section 120.57(1), Florida Statutes, in the above-styled case submitted her Recommended Order to the undersigned and all parties of record. A copy of the Recommended Order is attached as Exhibit A. In ays accordance with Rule 28-5.404, all parties were allowed twenty days in which to. file..exceptions..to.. the. Recommended Order. °.To date, none of the parties have submitted exceptions. The Recommended Order came before me as agency head for final agency action.” Having considered the Recommended Order, the exhibits admitted into evidence at final hearing and the transcript of the final hearing conducted on August 1, 1988, it is ORDERED that.the Recommended Order, attached as Exhibit A, is adopted as the final order of the agency. Accordingly, the protest filed by Parkway-Oakland General Partnership in Case No. 88-3358BID is dismissed and Lease No. 510:0049 is awarded to American National Bank of Florida. DONE AND ORDERED this o%/~& day of September, 1988, in Tallahassee, Leon County, Florida. | Lh aap A ssi SHARYN SMITH Director 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 Qist day of September, 1988.
Recommendation SEE NVDATION Based on the foregoing, it recommended that the Division of Administrative Hearings enter a final order dismissing Case No. 88-3358BID ang awarding Lease No. 510:0049 to American National Bank of Florida. st : RECOMMENDED this /*~ day of September, 1988, in buce BK ghhad SUSAN B. KIRKLAND Hearing Officer Office of General Counsel Department of General Services Room 452, Larson Building 200 East Gaines Street Tallahassee, Florida 32399-0955 (904)487-1082 Tallahassee, Florida. Filed with the Clerk of the Department of General Services this /od day of September, 1988 Copies furnished to: Kim Cecile Rice Lobrano & Kincaid, P.A. Suite 810, 121 Forsyth Street Jacksonville, Florida 32202 William A. Bald, Esquire Dale & Bald 2900 Independent Square Jacksonville, Florida 32202 Robert D. Newell, Jr. Newell and Stahl, P.A. 817 North Gadsden Tallahassee, Florida 32303-6313 Mark Rubin, Esquire 777 Arthur Godfrey Road Suite 320 Miami Beach, Florida 33140 10 APPENDIX TO RECOMMENDED ORDER IN CASE NO. 68-3358B1D The following constitutes my specific rulings pursuant to section 120.59(2), Florida Statutes, on all of the Proposed findings of fact submitted by the parties in this case, ’ Specific Rulings on Proposed Findings of Fact Submitted by Petitioner Parkway-Oakland General Partnership Proposed Finding of Fact No. 1 is incorporated in Finding of Fact Nos. 1 and 2. Proposed Finding of Fact No. 2 is incorporated in Finding of Fact Nos. 2, 3, and 4. Proposed Finding of Fact No. 3 is incorporated in Finding of Pact No. 8 and is covered in the Introduction and Issues, Proposed Finding of Fact Wo. 4 is subordinate and unnecessary to the facts as found. . Proposed Finding of Fact No. 5 is covered in the Introduction and Issues. The first sentence in Proposed Finding of Fact No. 6 is subordinate and unnecessary. The remainder of the proposed finding of fact is rejected as not supported by the record as a whole, as conclusionary, and as mere recital of testimony. . The first sentence in Proposed Finding of Fact No. 7 is incorporated in Finding of Fact No. 8. The remainder of the proposed finding of fact is subordinate and unnecessary to the facts as found. The portion of Proposed Finding of Fact No. 8 which indicates that windows were not installed at the time of the bid submittal and that the building had a four foot overhang is incorporated in Finding of Fact No. 8. The remainder of the proposed finding of fact is rejected as mere recitation of testimony, conclusionary, speculative and not supported by the record as a whole. The first two sentences of Proposed Finding of Fact No. 9 are cumulative in part and subordinate and unnecessary to the facts aB found. ll 10. ll. 12, 13. 14, 15. 16. 17. 18. 19. 20. 2i. 22. 23. 24. In Proposed Finding of Fact No. 10, the fact that the building proposed by American Bank had a hole in the roof is incorporated in Finding of Fact No. 9. The remainder of the Proposed finding of fact is subordinate and unnecessary to the facts as found. Proposed Finding of Fact No. 11 is cumulative. Proposed Finding of Fact No. 12 is incorporated in Finding of Fact No. 10. Proposed Finding of Fact No. 13 is rejected as not supported by the record as a whole. Proposed Finding of Fact No. 14 is rejected as not supported by the record as a whole. Proposed Finding of Fact No. 15 is subordinate and unnecessary as to the facts as found. The first paragraph in Proposed Finding of Fact No. 16 is mere recitation of testimony, subordinate, and unnecessary. The last paragraph is rejected as conclusionary and not supported by the record as a whole. Proposed Finding of Fact No. 17 is rejected as conclusionary and not supported by the record as a whole. Ms. Goodman's testimony did not contradict the testimony of Ms. Spears. Proposed Finding of Fact No. 18 is subordinate and unnecessary to the facts as found. . Proposed Finding of Fact No. 19 is subordinate and unnecessary to the facts as found. Proposed Finding of Fact No. 20 is subordinate and unnecessary to the facts as found. Proposed Finding of Fact No. 21 is mere recitation of testimony, subordinate, and unnecessary to the facts as found. Proposed Finding of Fact No. 22 is subordinate and unnecessary to the facts as found. . Proposed Finding of Fact No. 23 is subordinate and unneccessary to the facts as found. Proposed Finding of Fact No. 24 is cumulative and mere recitation of testimony. To the extent that the testimony indicates that Building "A" was not an existing building that is incorporated in Finding of Fact No. 12. 12 25. 10. Ti. 12. 13. Proposed Finding of Fact No. 25 is subordinate and unneccessay to the facts as found. Specific Rulings on Joint Proposed Findings of Fact Submitted By DOAH and American Bank Proposed Finding of Pact No. 1 is incorporated in Finding of Fact No. l. Proposed Finding of Fact No. 2 is incorporated in Finding of Fact No. 6. Proposed Finding of Fact No. 3 is incorporated in Finding of Pact Nos. 2, 3, and 4. To the extent not subordinate and unnecessary, Proposed Finding of Pact No. 4 is incorporated in Finding of Fact - Nos. 4 and 8. Proposed Finding of Fact No. 5 is incorporated in Finding of Fact No. 8. . Proposed Finding of Fact No. 6 is subordinate and unnecessary. To the extent not subordinate and unnecessary, Proposed Finding of Fact No. 7 is incorporated in Finding of Fact No. Proposed Finding of Fact No. 8 is subordinate and unnecessary. To the extent not subordinate and unnecessary, Proposed Finding of Fact No. 9 ig incorporated in Finding of Fact No. To the extent not subordinate and unnecessary, Proposed Finding of Fact No. 10 is incorporated in Finding of Fact No. 13. Proposed Finding of Fact Nos. 11, 12, and 13 are subordinate and unnecessary. . To the extent not subordinate and unnecessary, Proposed Finding of Fact No. 14 is incorporated in Finding of Fact No. 4. : Proposed Finding of Fact No. 15 is subordinate and unnecessary to the facts as found. 13 Proposed Finding of Pact No. unnecessary. Proposed Finding of Fact No. unnecessary. Proposed Finding of Fact No. in Finding of Fact No. 7 Proposed Finding of Fact No. in Finding of Fact No. 9. Proposed Finding of Fact No. in Finding of Fact No. 9 To the extent not subordinat Finding of Fact No. Proposed Finding of Fact No. unnecessary. Proposed Finding of Fact No. in Finding of Fact No. 10, Proposed Finding of Fact No. in Finding of Fact No. 10. Proposed Finding of Fact No. of Fact Nos. 10 and 1l. 16 17 18 19 20 is is is is is subordinate and subordinate and modified and incorporated modified and incorporated modified and incorporated e and unnecessary, Proposed 21 is incorporated in Finding of Fact 22 is subordinate and 23 is is is modified and incorporated modified and incorporated incorporated in Finding oye STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS THE KOGER COMPANY, Petitioner, “Vs. DIVISION OF ADMINISTRATIVE HEARINGS, Respondent, and AMERICAN NATIONAL BANK OF FLORIDA, Intervenor. PARKWAY-—OAKLAND GENERAL PARTNERSHIP, Petitioner, vs. DIVISION OF ADMINISTRATIVE HEARINGS, Respondent, and AMERICAN NATIONAL” BANK OF ~ FLORIDA, Intervenor. ew
Other Judicial Opinions A...PARTY .WHO..IS.. ADVERSELY AFFECTED. BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW PURSUANT TO SECTION 120.68, FLORIDA STATUTES. REVIEW PROCEEDINGS ARE GOVERNED BY THE FLORIDA RULES OF APPELLATE PROCEDURE. SUCH PROCEEDINGS ARE COMMENCED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE DIVISION OF. ADMINISTRATIVE HEARINGS AND A SECOND COPY, ACCOMPANIED BY FILING FEES PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, OR WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY RESIDES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO REVIEWED. Copies furnished: Kim Cecile Rice, Esquire LOBRANO & KINCAID, P.A. Suite 810, 121 Forsyth Street Jacksonville, Florida 32202 William A. Bald, Esquire DALE & BALD 2900 Independent Square Jacksonville, Florida 32202 Robert D. Newell, dr., Esquire NEWELL AND STAHL, P.A. 817 North Gadsden Street __ Se Tallahassee, Florida 32303-6313 Mark Rubin, Esquire 777 Arthur Godfrey Road Suite 320 Miami Beach, Florida 33140 Susan B. Kirkland, Esquire Office of General Counsel Department of General Services Room 452, Larson Building 200 East Gaines Street Tallahassee, Florida 32399-0955
The Issue Whether the Petitioner was the lowest responsive bidder in Lease No. 590:1975, and therefore entitled to the contract award.
Findings Of Fact In 1988, the Department made the determination that it would not exercise its option on leased space owned by the Petitioner Dyess, in Clewiston, Florida. Bid documents were prepared by the agency for its current office space needs. Bid proposals were solicited through newspaper advertisements and personal contact with owners, developers, and realtors within the Clewiston area. The Department included Dyess in its solicitations. He was sent an Invitation to Bid for Existing Facilities by the Department. This bid package contained all of the bid documents for the bid referred to as Lease Number 590:1975. The Invitation to Bid was issued by the Department for approximately 7,962 square feet of net rentable office space in Clewiston, Florida. The invitation was prepared using HRS Facilities Form R01-87. The form used by the Department for soliciting and accepting competitive proposals for the leased space was required to comply with all conditions and requirements adopted by the Department of General Services, as set forth in Rule 13M-1.015(3)(e), Florida Administrative Code. The Department of General Services is the agency which administers real property leasing for the State of Florida for leased space of 2,000 square feet or more in privately owned buildings. During the bidders' conference held on April 26, 1988, Mr. Michael J. Sedgwick, the agency's representative, was questioned about the agency's interpretation of the term "dry and capable of being physically measured" which is set forth on page two of the Invitation to Bid and page three of the Bid Submittal Form. Page two of the Invitation to Bid is a glossary which defines various terms used within the bid documents. The term "existing building" is defined as follows: To be considered as existing, the entire space being bid must be dry and capable of being physically measured to determine net rental square footage at the time of the bid submittal. Paragraph 10 on page three of the Bid Submittal Form reiterates the definition of an "existing building" as set forth in the Invitation to Bid. The language in the bid documents which defines the term "existing building" is identical to the language in Form BPN 4136, which has been promulgated as a rule by the Department of General Services as the format for specifications for the solicitation of leased spaces by the State of Florida. In response to the request for an interpretation, Mr. Sedgwick contacted Mr. George Smith, who administers the leasing program for the Department in Tallahassee, and obtained the following definition: "Dry and measurable" consists of four things: a slab, four corners, a roof, and a valid building permit if construction is in progress. The definition given by Mr. Smith was verbally communicated to the prospective bidders who attended the conference. This definition was verbally communicated to the Petitioner by Mr. Sedgwick on April 27, 1988. The Petitioner timely submitted a bid in Lease Number 590:1975 on the Department's Bid submittal Form by May 24, 1988. On page three of this form, each bidder was required to acknowledge the bid requirements contained on that page by placing his initials in the bottom right hand corner. The Petitioner Dyess acknowledged the requirement that the proposed space must be an "existing building" at the time of the bid submittal. On May 24, 1988, the date of the bid opening, Petitioner's building did not meet the requirements of an existing building as defined within the bid documents or the Department's verbal clarification of the definition. The building did not have a roof, a slab, or a valid building permit. After the bids were opened, the District VIII Bid Evaluation Committee visited each of the proposed lease locations. When the Petitioner's proposed location was reviewed by the committee two days after the close of bids, the addition was found to consist of the following: two partially completed block walls which connected the two existing buildings. The existing buildings were still intact, but it was apparent that an expansion was taking place, and that the completed project would be one building. A slab had not yet been poured in the addition, and it was without a roof. The plans submitted to the Department with the Petitioner's bid suggested that this expansion was capable of producing the square footage required by the Department. The City of Clewiston was aware of the Petitioner's expansion project, but he was not required by this authority to have a building permit at the time the project was viewed by the committee and evaluated by the Department. The Petitioner's bid was rejected by the Department because, on the date of the bid submittal, the proposed addition was not an "existing building" as defined by the bid documents and the further verbal interpretation by the agency. The bid submitted by the Intervenor Tibbetts did not contain the complete contract for the purchase of the property. However, the right to purchase was evidenced by a document submitted with the bid. Full Disclosure Statements of Ownership are not required under Rule 13N-1.015, Florida Administrative Code, until after a bid is awarded. The property was not properly zoned at the time of the Intervenor Tibbetts' bid submittal.
Findings Of Fact During the month of March 1996, the Pinellas County School Board, pursuant to an advertised invitation for bids, (IFB), solicited bids for the construction of a new facility for John H. Sexton Elementary School (Sexton school). Each party submitting a bid was required to do so on a bid proposal form which was contained in the bid documents prepared by the project architect, Mr. Hoffman, and furnished to each prospective bidder who requested the bid package. One section of the bid proposal form related to "dewatering" potentially required at the construction site, and consistent with that potential two sentences were contained on the bid proposal form relating to dewatering of footings and of utilities, both of which provided for election by checking of an affirmative or a negative, and both of which had been pre-checked in the affirmative by the Board. It was the position of the Board that the pre- checked sentences as to dewatering on the bid proposal form constituted an acknowledgment by each bidder that that bidder's submittal included dewatering in the base bid. In addition to the check, the dewatering section also included blanks for the insertion by the bidder of figures representing lineal feet of header pipe and unit price per foot which figure would constitute a credit given by the bidder to the Board against the total bid price if dewatering were found not to be necessary, both as to footings and to utilities. Even further, the form also contained blanks to be filled in by the bidder for unit prices to be charged the Board in the event additional dewatering was required by virtue of the Board's later inclusion in the project of additional footings or utilities. Prior to the time for bid submittal, the Board conducted a meeting of all prospective bidders at which the project was explained and bidders given an opportunity to ask questions raised by the bid package. Johnson did not ask any questions regarding dewatering or that portion of the package relating thereto. Numerous bids were submitted in response to the proposal, including those from Johnson and Ellis. By stipulation at the hearing, the parties agreed that in all ways other than in that section of the bid proposal form for this project relating to dewatering, Johnson was and is a responsive and responsible bidder, as is Ellis. The bid proposals were opened by the Board at 2:00 PM on April 11, 1996 and the base bid prices on each proposal were read aloud to all in attendance by a Board representative. The project architect was present at the opening and tabulated and reviewed the bid proposals as opened. Johnson submitted the lowest base bid with a price of $7,965,000. The next lowest bid was that of Ellis, whose base bid price was $7,945,200. At the time of opening, no Board representative indicated anything was wrong with Johnson's bid Mr. Hoffman, the project architect, immediately noticed that Johnson had altered the Board's pre-checked bid proposal form by striking out the pre- checked "is" space regarding inclusion of dewatering in the base price of the two dewaterings, and making an X in each of the "is not" spaces. Mr. Hoffman considered that alteration by Johnson as a material alteration of the Board's solicitation which rendered Johnson's bid non-responsive. It must be noted that each change bears the initials, R. Y. Reza Yazdani is Johnson's president who initialed the changes and signed the bid proposal form for the company. In addition, Johnson also inserted a "0" in those spaces which dealt with amount of credit and cost of additional dewatering in the event additional work is required by the Board. In that regard, Hoffman opined that had Johnson not changed the check marks, but inserted the "0" figures as it did, the bid would have been responsive and Johnson would still have been lowest responsive bidder. The reason for this is that the bid form specifically notes that "the unit costs described in A & B above shall in no manner influence the School Board's selection of a firm to whom to award the Contract." The Board now recognizes that there is no part "B", as referenced in the proposal form. Since the "0's" would not influence the selection, use of an unmodified Board form, along with the lowest submitted base price would, in Hoffman's opinion, probably have meant that Johnson would have been awarded the contract. Johnson's representative, Mr. Mohme, who drafted the company proposal, specifically indicated he did not believe dewatering was a potential in this project. He recognized that such dewatering as was necessary was required by other provisions in the project specifications and he could not figure any way to recognize this and yet accurately reflect his belief that dewatering would not be necessary, other than to strike the pre-checked block and insert the check in the alternative block. He felt that by doing so, he was more accurately reflecting Johnson's bid. This reasoning is rather obscure. By letter dated April 12, 1996, written to the Board after the bids were opened, Mr. Mohme reiterated Johnson's position that dewatering is not necessary on this project, but further stated that if dewatering were to be necessary, Johnson would do so solely at its own risk and without any risk of additional cost to the Board. Bids may be clarified by a bidder, but such clarification must take place before the bids are opened. Bids may not be modified after bid opening. Before that letter was written, however, when the bids were opened and Mr. Hoffman observed what he considered was Johnson's alteration of the bid form, Hoffman consulted with a representative of the Board's purchasing department, Ms. Maas, who also reviewed Johnson's bid. Ms. Mass was of the opinion that Johnson may have attempted to qualify its bid, and she and Mr. Hoffman thereafter met with Mr. Rivas, the Board's director of facilities design and construction, to explain the problem. Mr. Rivas took the problem to two other Board personnel to see if there were some way Johnson's bid could be deemed responsive so that the Board could benefit by Johnson's low bid price. Within the context of those aforementioned discussions, Hoffman took the position that the alteration might leave the Board open to a possible change order and additional liability if dewatering were to be required and the Board had accepted Johnson's bid indicating that process was not included in the base price. Mr. Rivas, after consulting with the Board's attorney, also concluded that Johnson's alteration expressly excluded dewatering as an included factor and its exclusion constituted a serious and material deviation from the Board's solicitation. It was deemed material in that the deviation apparently gave Johnson a competitive advantage over other bidders who did not amend the form. This appears to be a valid conclusion and is adopted herein. The decision to recommend rejection of Johnson's bid and acceptance of Ellis's as the lowest responsive bid was ultimately reached by the Board's administrative staff. The Ellis bid was responsive to the solicitation whereas the determination was made that Johnson's was not responsive because of the alteration. It was not the actual act of alteration that caused that determination but rather the potential effect of the alteration. This was consistent with long standing Board policy not to accept a bid which does not conform to a bid solicitation and not to accept bids from bidders who alter the Board's bid proposal form or otherwise attempt to qualify their bids. It is the opinion of the Board personnel that such consistency in bidding procedure has resulted over time in more qualified bidders submitting bids for Board work which, in turn, has resulted in more competitive prices for the work let for bid. This is a reasonable policy. Mr. Gottschalk, Johnson's expert architect, who has designed schools for the Board, offered an alternative disposition to this dilemma. While admitting that Johnson's shifting of the risk of loss as a result of possible dewatering was a material matter, he suggested the Board could have disregarded the dewatering clause on every submittal and thereafter awarded the contract to Johnson, the lowest bidder, whose bid was responsive to the solicitation except for the dewatering provision. Recognizing this solution would have placed each bidder on an equal footing and allowed award to the lowest bidder at a substantial savings to the Board, he nonetheless also understood the decision made by Mr. Hoffman and the Board staff here and could not fault it. He agreed that reasonable men could differ on the issue of responsiveness here and how to deal with it. It is so found. After a review of the evidence submitted, including the testimony indicating the remoteness of the likelihood that extensive dewatering would be required, there appears to be no evidence that the Board, or its staff, acted dishonestly, fraudulently, illegally or arbitrarily in rejecting Johnson's bid on this project and recommending award to Ellis.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Pinellas County School Board enter a final order denying and dismissing G. H. Johnson Construction Company's protest and awarding a contract for the construction of Sexton Elementary School to Ellis Construction Company, Inc. DONE and ENTERED this 8th day of May, 1996, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 8th day of May, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 96-1942BID To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact: Johnson's Proposed Findings of Fact. 1.-5. Accepted and incorporated herein. Accepted. Accepted but not a proper Finding of Fact. More a restatement of and comment on testimony. Rejected. Accepted but not a proper Findings of Fact. More a restatement of and comment on testimony. &11. Accepted. Accepted and incorporated herein. First sentence accepted as a literal statement of what appears in the specifications. Second and third sentences accepted but not probative of any material issue of fact. Accepted and incorporated herein. First sentence accepted. Balance not Finding of fact but argument. Ellis' Proposed Findings of Fact. 1.&2. Accepted and incorporated herein. 3.-6. Accepted. 7.-10. Accepted and incorporated herein. 11.-15. Accepted and incorporated herein. 16. Accepted but word "certain" is changed to read "likely." 17.-21. Accepted and incorporated herein. 22. Accepted and incorporated herein. 23.&24. Accepted. 25.&26. Accepted and incorporated herein. 27.-29. Accepted. Accepted and incorporated herein. Not relevant to any material issue of fact. COPIES FURNISHED: Jawdet I. Rubaii, Esquire Clearwater Executive Suites, No. 213 1345 South Missouri Avenue Clearwater, Florida 34616 John W. Bowen, Esquire Pinellas County School Board 301 4th Street S.W. Largo, Florida 34649-2942 E. A. Mills, Jr. Esquire Dale W. Vash, Esquire Fowler, White, Gillen, Boggs, Villareal and Banker, P.A. 501 East Kennedy Boulevard Post Office Box 1438 Tampa, Florida 33601 Pinellas County School Board 301 4th Avenue, S.W. Largo, Florida 34649-2942
Findings Of Fact The Respondent, Department of Corrections, by advertisement in a Jackson County, Florida newspaper on March 27, March 30 and April 6, 1988, sought bids for the provision of office space for the Department's offices in Marianna. The bid specifications, including, as pertinent hereto; minimum square footage, a requirement that Energy Performance Index calculations and certification thereof by an architect or engineer be shown, and the requirement that all parking spaces be on site, was made available to potential bidders on March 28. A pre-proposal conference of potential bidders was held on March 31 to explain and clarify the specifications. Bids were submitted by the two Petitioners, and the bids were opened on April 14, 1988. On or about April 19 or 20, Wendell Beall and Robert Sandall evaluated the bid proposals and made a preliminary determination that the Rainbow bid was non-responsive in three areas. It was determined that the required square footage depicted on the Rainbow bid was inadequate; the parking provision was inadequate in that not enough "on-site" spaces were shown on the bid; and the Energy Performance Index calculations and certification by an architect or engineer was not supplied. On April 21, 1988, the lease committee, chaired by Thomas Young, met and reviewed both bid packages submitted by the Petitioners and affirmed Mr. Beall and Mr. Sandall's findings, with the result that the agency decided to award the contract to Brooks. The bid specifications required a minimum of 12,756 net square feet of rentable office space. Only 11,862 square feet could be identified as net rentable square footage on the Rainbow bid's floor plan, as calculated in compliance with the "standard method of space measurement." This square footage calculation was consistent with the actual measurements of the building made by Mr. Beall himself. The Brooks' bid depicted an adequate amount of square footage in compliance with the specifications. Mr. Beall calculated the net rentable interior square footage by utilizing the standard method of space measurement provided for in the rules of the Department of General Services and, after deducting nonusable, nonrentable space under that standard, rule mandated method, he arrived at the net rentable office space figure of 11,862 square feet. Rainbow at no time has presented any conflicting measurement or alleged any specific errors in Mr. Beall's calculations. Item A-10 of the bid specifications requires a floor plan to be submitted showing the present configurations of the building, with measurements that equate to the required net rentable square footage. This means that the minimum square footage must be shown in the floor plan attached and submitted with the bid specifications, even if the building may contain more square footage. The Department supplied a specific number of offices of various sizes and a required configuration no floor plan in order to depict work units that should be constructed and/or arranged together, as part of the specifications in the Invitation to Bid documents. The purpose of this agency floor plan was to give potential bidders a guide to calculate the cost of remodeling existing space to meet the agency's needs so that those potential bidders could amortize that cost as part of the rental amount involved. Therefore, the proposed floor plan included in a bidder's package should not vary substantially from the final plan used to actually remodel the leased space in accordance with the agency's requirements. Accordingly, the only submittal of plans which is permissible subsequent to the bid opening, as contemplated by the bid specifications, are the final plans developed by a successful bidder in consultation with the agency after the bid award. No floor plan may be unilaterally submitted by a bidder after the bid opening since that would constitute an illegal amendment of the bid. Only a floor plan done in consultation with the agency in order to make final adjustments so that all office space and other related space will comply with the agency's precise requirements may be done after the bid is actually awarded, and this must be based upon the floor plan originally submitted in the bid itself in conformance with the bid specifications regarding office layout, square footage and the like. The Rainbow bid simply contained an inadequate amount of square footage necessary to be a responsive bid in this regard. An additional bid specification at issue concerns the requirement of 77 exclusive use, on-site parking spaces. The Rainbow bid only made provision for 27 on-site exclusive parking spaces, with the remaining 50 spaces of the required 77 being off the proposed building site, approximately 155 feet away, without sidewalk access to the proposed office building. The Brooks' bid incorporated all required parking spaces on the site, as required by the specifications. The Rainbow bid was non-responsive concerning the parking space specification as well. Mr. Beall prepared the bidding documents as Budget Manager for the Department of Corrections' Region I. He was the person designated in the bidding documents to answer any questions requiring clarification by prospective bidders before bids were prepared and submitted. Mr. Beall established that the intent of the agency with regard to this parking space requirement was to require all 77 parking spaces to be on-site. No bidder or prospective bidder asked any questions of Mr. Beall concerning this specification prior to the submittal of any of the bids. Mr. Brooks, however, did consult with Mr. Beall on the question of the Energy Performance Index specification item before he submitted his bid. Mr. Brooks is a former physics and advanced mathematics teacher with some 20 years experience in construction. He has been a licensed general contractor and master builder for residential, commercial and industrial types of construction for 11 years. He typically designs and draws his own plans, including those submitted with the bid at issue. He spent approximately 100 hours of his time on preparation of this bid. Mr. Brooks had previously been awarded a rid by the Department of Corrections on which he simply invalid the item concerning the Energy Performance Index (EPI) specification. That item was found to be responsive by the Department, and the bid was awarded to Mr. Brooks. On a subsequent bid on a different job, Mr. Brooks again merely initialed the EPI specification, which he intended to mean that he would perform the job at issue such that the EPI requirements would be met. He was not awarded the bid on that particular job, but upon his informally notifying the Department of Corrections that he might protest the decision to award the bid to a different bidder, the Department personnel advised him that they might choose to raise the issue of his responsiveness to the EPI specification in that situation. With this history in mind, Mr. Brooks, before submitting his bid, contacted Mr. Beall to inquire as to what would be considered an appropriate response to the EPI specification on the bidding documents. The EPI has been calculated by Mr. Brooks on numerous projects in the past, and he is capable of calculating it as to this project. He found, however, that it would be impossible to calculate a precise and accurate EPI specification response, because he would not have the final floor plan from which to calculate it, with all the information that would give him concerning room configurations, size, location and size of windows, size and type of heating and air-conditioning equipment and many other factors. Mr. Brooks could, however, give his certification that the energy performance requirement would be met, once the final plans were completed in conjunction with discussion with the agency after award of the bid, which comports with standard agency policy and practice. Because he was concerned that any energy performance calculations he might supply would not necessarily be accurate in the final analysis, in relation to the final "to be constructed" plans, Mr. Brooks contacted Mr. Beall to obtain his guidance about what would be considered a proper response to this specification item. Mr. Beall advised him that a letter certifying that he would comply with the specification as to this issue would be an appropriate alternative to simply initialing the specification. The same opinion was also voiced at the lease committee meeting. Mr. Beall's advice to Mr. Brooks in this regard was based upon advice given him by Mr. Edwin Johnson of the Department of General Services and was based upon past agency policy concerning treatment of this issue on previous bids considered by the lease committee. Previous bids had indeed been accepted in the form submitted by Mr. Brooks and had not been found to be nonresponsive as to the EPI issue. Thus, Mr. Brooks, in addition to initialing the specification concerning the EPI, also supplied the referenced letter certifying that he would comply with that specification and agency requirement. Rainbow, on the other hand, merely initialed that item in the specification and bidding document. Thus, the Brooks' bid is the more responsive on the issue of the EPI than the Rainbow bid. The bid award to Brooks was posted on May 2, and on May 4, Rainbow filed a Notice of Protest of she award which was received by the Department, timely on May 5. Shortly after that date, counsel for Rainbow requested that the Department's representatives and counsel meet with him and Mr. Jett, his client, of Rainbow Properties, to discuss the agency's award to Brooks and rejection of Rainbow's bid. On May 10, 1988, the Department's regional representatives and its counsel met with Mr. Jett of Rainbow Properties and his attorney, Mr. Barley. Mr. Jett used this opportunity to explain how he felt that the Rainbow bid had complied with the bid specifications in the three specific areas discussed above. The Department's counsel explained on that occasion that the bid could not be amended after opening and posting of the bids. Mr. Jett's bid had only shown 11,862 square feet identifiable as rentable space in the floor plan submitted with the bid, although 12,756 square feet were required by the bid specifications. Additionally, as discussed above, of the 77 required on-site parking spaces, only 27 were provided on site with 50 of them being off site, with Rainbow not establishing that it had ownership or right of control to the off site spaces. Additionally, as discussed above, there was the problem of no calculations or assurances being provided regarding the EPI specification, it merely having been initialed in Rainbow's bid submittal. At the May 10 meeting, Mr. Jett was given the opportunity to explain how his bid complied with the specifications at issue and to discuss how he felt the Department had misinterpreted his response or made an error in measuring or calculating the square footage available in his building. He provided no alternative calculations or measurements of the building, however, which would depict more than the 11,862 square feet measured by the Department's staff or which would show that measurement was incorrect. He was reminded that the only possible information he could legally provide the agency after the opening of bids was in the nature of minor clarification concerning how he had calculated the square footage. He was instructed that he could not revise his plans in order to establish that more square footage was available because that would be an illegal amendment of his bid after the bids were open and posted. At the May 10 meeting Mr. Jett also maintained that the Department had allowed for other than on site parking; however, but the bidding document or Invitation to Bid only contained one blank, and only one subsection on the bidding form, for the bidders to indicate 77 spaces designated as on site spaces. Mr. Jett maintained that since the Department had provided option "(A)" under this on-site parking specification item, that he was therefore free to add other options. Using that logic, however, it would also appear that he could have submitted a bid depicting spaces literally on the other side of town and still had a responsive bid. That clearly is not the correct interpretation of that specification. He also maintained that the EPI was impossible to calculate at the time of bidding, in view of the fact that final plans were not available to support the ultimate calculation. In any event, at the conclusion of this meeting, Department personnel informed Mr. Jett and his counsel that would inform him of its decision within a few days. The Department did not inform Mr. Jett that he would be permitted to amend his bid after obtaining professional help and redrawing his blueprint in an effort to show that the minimum square footage was available. Indeed, Rainbow and Mr. Jett did obtain the services of an architect and drew a new floor plan which it offered as PR-1 at the hearing. If the floor plan originally attached to Rainbow's bid, consisting of Exhibit PR-2 in evidence, is compared with the blueprint submitted by the architect after the meeting with the Department representatives on May 10, it can be discerned that the blueprint is not a mere refinement or clarification of the initial floor plan, but rather that major modifications have been made to the initial floor plan submitted with the bid. These consist of walls which have been moved, small rooms in some areas which have been eliminated, restrooms which have been deleted and an existing spiral staircase area which was eliminated, and a hallway enclosed, in order to add additional rentable square footage where new offices could be added. Thus, this blueprint offered at hearing was not a mere refinement or clarification of the original floor plan submitted with the Rainbow bid, but rather sufficiently different from original floor plan as to constitute a material amendment or modification to the bid. It therefore cannot be considered. The floor plan submitted with the bid was nonconforming to the bid specifications as to the square footage item and Rainbow cannot be permitted to rectify and correct that with the architect's new blueprint and floor plan offered at the time of the hearing. 1/ In short, insufficient square footage was depicted and that is not a minor waivable irregularity. Soon after this May 10 meeting, the Department changed its position, decided that both bids were not responsive and rejected them. Its alleged basis for doing so was that the Brooks bid was nonresponsive as to the energy performance index criteria and that the Rainbow bid was nonresponsive as to that criteria, as well as to those concerning minimum square footage and on-site parking availability; the same as the original grounds for rejecting Rainbow's bid. Timely formal protests of that second agency action were filed by both Brooks and Rainbow. In that connection, Rainbow's formal written protest of the original award to Brooks, which was announced and noticed on May 2, 1988, was untimely. The formal written protest must be filed within ten days of the notice of protest. Rainbow's original notice of protest was filed with the agency on May 5 and the formal written protest was not filed until May 17. Rainbow, in conjunction with its filing, filed a motion for leave to late-file the formal protest with the agency on the basis that it had mistakenly filed the formal protest with the Division of Administrative Hearings. That petition was filed with the Division on May 16th. The deadline for filing the formal protest was May 15th. Petitioner Rainbow, however, did not learn of the second intended agency action until May 16th, however, and may have been somewhat misled about the necessity of filing its formal protest by May 15th because of the informal discussion of May 10th. It is also true, however, that the informal meeting was improper, as discussed herein and was called at the behest of Rainbow without assurance that the filing time was tolled.
Recommendation In consideration of the above findings of fact and evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefor RECOMMENDED that the petition of Rainbow Properties, a Florida general partnership, should be denied and dismissed for the reasons found and concluded above, and that the petition of C. Leon Brooks be GRANTED and that the subject bid be awarded to C. Leon Brooks. DONE and ENTERED this 27th day of October, 1988, in Tallahassee, Florida. P. MICHAEL RUFF 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 27th day of October, 1988.
The Issue The questions presented here concern the entitlement of the Petitioner or Intervenor to be awarded lease rights under the Respondent's proposed Lease No. 590:8026, in that Petitioner and Intervenor have claimed that entitlement to the exclusion of the other party.
Findings Of Fact Respondent invited bid proposals for the provision of approximately 32,000 square feet of office space for its District VIII operation in Fort Myers, Florida. Petitioner, Chuck Bundschu, Inc., and Intervenor, Walter Lee Johnson d/b/a Walco Leasing Company, responded to the bid proposal by offering to provide the office space. Those responses may be found as part of the Composite Hearing Officer's Exhibit. Following the October, 1981, submittal of bid proposals, a bid evaluation committee was appointed by the Subdistrict Administrator for District VIII to consider the bids. In turn, he afforded guidance to that committee on the subject of the evaluation of the proposed bids offered by Bundschu and Walco, the only bidders for the project. The evaluation committee performed the task of weighing the bid proposals, in keeping with evaluation criteria which are outlined in Respondent's "Facilities, Acquisition and Management Manual" dealing with the procurement of lease space, which criteria are set forth in a form referred to as "HRSM 70-1, page A1-4-8," which is attached to chapter four of the manual. All criteria used for the evaluation process were drawn from that form with the exception of criterion No. 7, related to staff and client marking which was a product of this bid evaluation effort. (A copy of the HRS manual and forms may be found as Respondent's Exhibit No. 1, admitted into evidence. The evaluation committee's summarization utilizing the form criteria and the additional parking criterion may be found as a part of the Hearing Officer's Composite Exhibit, which is a replication of the original.) The HRS manual for procuring leased space is a publication of February, 1980, and establishes uniform guidelines by which bid proposals are considered by local officials who are part of Respondent's organization. Nonetheless, the exact weight to be afforded each criterion outlined in the manual is determined by the local evaluation committee. Weighing concerns the subject of awarding numerical values for beach bidder related to the various criteria with a maximum possible score being 100 points. On the basis of the evaluation performed by the committee, the Bundschu total was 88.25 points and the The Walco point total was 82 out of the possible 100 points. Consequently, the evaluation committee recommended that Bundschu be awarded the lease. Mark Geisler, in his capacity as Subdistrict Administrator, for District VIII, concurred in this evaluation as may be seen in his November 6, 1981, transmittal of the bid materials and associated evaluation, which transmittal may be found as pert of the Hearing Officer's Composite Exhibit. The District Administrator, District VII, in the person of Frances Clendenin, who was acting for the District Administrator, Ivor D. Groves, Ph.D., also recommended acceptance of the Bundschu bid. This position was made known by a memorandum of November 16, 1981. A copy of that recommendation is found as a part of the Hearing Officer's Composite Exhibit. The recommendations spoken to thus far were made known to Lester C. Missman, an official within the Division of General Services of the Department of Health and Rehabilitative Services. This division was, at the time of the bid proposals, and is now, headed by Dr. Homer Ooten, whose function within Respondent's organization includes the responsibility to evaluate lease proposals involving the Respondent agency and to make a final decision on the question of the lease award, based upon a review of the local subordinate unit's recommendation. By this, it is meant that the lease by Health and Rehabilitative Services as "user agency" is signed by Ooten based upon a delegation of authority to him through the vehicle of correspondence signed by the agency head. Ooten, upon considering the recommendation of the District Administrator's office, the Subdistrict Administrator and the evaluation committee, did not find fault with the criteria nor the point weighing scheme used in the evaluation process. He did question the cost analysis performed by the evaluation committee on the subject of client mileage for those clients receiving services from Respondent in a move from the HRS office in the Bundschu building where they were located at the time, to the building where Walco intended to let property. This was a distance of seven/tenths (7/10) of a mile and based upon the number of clients receiving services, there would be an estimated $100,000.00 in client mileage cost increase. This item was not deemed to be an appropriate consideration by Ooten and was disregarded in his review of the cost analysis performed by the evaluation committee. That cost analysis may be found as part of Respondent's Composite Exhibit No. 2, and includes interlineations by Ooten in his opinion on the subject of the cost analysis. That analysis had indicated an overall advantage of approximately $11,000.00 in favor of Bundschu and was premised upon costs related to Item 12 in the criteria, which criterion is cost of moving. It assumed a difference of over $131,000.00 in moving costs, the majority of which costs pertained to client inconvenience ($100,000.00), discounting $120,000.00 plus dollars related to the difference in the bid amount between the Walco and Bundschu bids which bid estimate was in favor of Walco. Ooten's opinion on the subject of the priority of including $100,000.00 plus dollars in clients' travel costs, when considered in the context of point awards under Item 12 in the criteria, lead Ooten to believe that the differential in point awards would not result in a 9.25 value of Bundschu versus a zero value for Walco. In his mind, the differential would be much less. Ooten made his own evaluation of moving costs per se, and through that process determined that approximately $15,600.00 would be necessary for a move into the Walco facility whereas $5,600.00 would be involved in the Bundschu move, which required the expansion of existing space in the Bundschu facility. Based upon an evaluation of the point differential in the rental rate criterion which was a differential of 2, that is 30 points out of a possible 30 for Walco and 28 points out of a possible 30 for Bundschu, Ooten also opined the this was an unreasonable assessment in view of the fact that the Walco bid amount was more than $120,000.00 less than the Bundschu bid. This taken together with the fact that there only existed approximately a $9,000.00 difference on moving costs between Bundschu and Walco, which was in favor of Bundschu, and there having been indicated a 9.25 out of a possible 10 point difference in Item 12 on the question of costs related to moving, led Ooten to believe that the true factual status of criteria Nos. 1 and 12 was not as depicted by the evaluation committee. Per Ooten, with proper assessment Walco would have received a higher point count than Bundschu through the process of applying the bid criteria, as well as being the lower bidder from the point of view of rental rates alone. After several exchanges with the District level personnel of Respondent who had been involved in the lease evaluation process, in which, on two (2) occasions, the local officials continued to support their initial opinion of the propriety of the award to Bundschu, a decision was made at the District VIII level to support the award of the lease to Walco as may be seen in the January 6, 1982, correspondence from the District Administrator to Missman, a copy of which may be found as Respondent's Exhibit No. 4, admitted into evidence. On January 6, 1982, Ooten issued a letter to the District VIII Administrative Services Director indicating the authority to award Lease No. 590:8026, formerly referred to as No. 590:1472, for the benefit of Walter Lee Johnson d/b/a Walco Leasing Company. Having learned of this decision and in keeping with the provision Subsection 120.53(5), Florida Statutes, Bundschu, through counsel, indicated opposition to that award on January 12, 1982, followed by a formal petition letter setting forth grounds for the opposition, which petition was filed on January 19, 1982. This series of documents is part of the Hearing Officer's Composite Exhibit, through copies. Subsequently, Items 4 and 6 in the petition letter were resolved between the parties without the necessity of a hearing and this is borne out by a copy of the February 1, 1982, correspondence from counsel for the Respondent to counsel to the Petitioner, part of the Hearing Officer's Composite Exhibit. The matter was then referred to the Division of Administrative Hearings for a formal Subsection 120.57(1), Florida Statutes, hearing by correspondence from the Assistant General Counsel for Respondent, dated February 4, 1982, a copy of which may be found as a part of the Hearing Officer's Composite Exhibit. There followed the intervention of Walter Lee Johnson as a party of record and the hearing was held on April 27, 1982. Petitioner's first contention deals with the idea of discounting the lease value based on the value of the "stream of future lease payments." This theory is contended for through Robert Sizemore, C.P.A., expert witness of the Petitioner. He would call for the discount of lease payments on the theory that present dollars will have a discounted value in the future, as the lease period unfolds. Taking into account the method of payment by the Respondent and the vicissitudes involved in attempting to establish the value of today's dollar at a future time, this theory of discounted dollars at a 10 percent or 12 percent rate per annum in succeeding years is not indicated. Assessment through the legislative appropriations process of sufficient funds to meet lease payment demands is not contingent upon the value of the dollar at any given point in the history of the lease. Therefore, the "stream of future lease payments" concept is inapplicable here. Likewise, trying to project the value of today's dollar at some future date is so tenuous as to be an unacceptable method to evaluate the competing lease proposals. Finally, even if this method was used, a 10 percent discount rate for inflation would leave approximately a $67,000.00 difference in the bid proposals and a 12 percent per annum discount rate related to inflation would leave approximately $52,000.00 difference in the bid proposals, in favor of the Walco bid. Petitioner has contended that Respondent failed to properly account for direct moving expenses. In that regard, the calculations made by Ooten on the question of moving expenses as reported above are accepted as fact. As a third claim, Petitioner has alleged the agency s disregard for recommendation of its evaluation committee in making the lease award. While the initial recommendations of the evaluation committee and staff were disregarded, the District Administrator eventually accepted the point of view of the Division of General Services within the Respondent's Department. Moreover, even if the local officials within the Respondent's Department had not accepted Ooten's viewpoint, the initial evaluation committee's development of criteria was flawed and the Ooten perception was correct, leading to a decision in favor of Walco. Finally, the contention by Petitioner that the agency did not seek adequate input from third parties affected by the relocation of the facility was not demonstrated through testimony. The method for review of the proposed lease was acceptable and to the extent that it required an appreciation and response to the needs of others not directly involved in the lease process, it has been amply afforded. Evaluation was in keeping with Respondent's "Facilities, Acquisition and Management Manual, HRSM 70-1, fourth chapter" and the award is based upon concurrence of the Division Director of the General Services Division of HRS pursuant to that chapter. Through argument, counsel for the Petitioner has also referred to the fact that in the initial evaluation process set forth in the sixth criterion, superior points of 2.5 for Walco as opposed to 2.25 for Bundschu had been awarded, when in fact the narrative summary of the reasons for such awards indicate an advantage to Bundschu. Even if the .25 points were allowed in the favor of Bundschu, this would not change the result.
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
The Issue There are two issues presented by Petitioner, as follows: Was the bid of Intervenor, BDC Deland Ltd., responsive? Was the Respondent, the Department of Health and Rehabilitative Services (HRS), decision to award the bid in this case arbitrary and capricious?
Findings Of Fact HRS issued an invitation to bid (ITB) competitively for Lease No. 590:2438 for approximately 17,568 square feet of office space in Deland, Florida. A three percent variance in the amount of space offered was permitted. The ITB required that all bidders attend a pre-proposal conference because valuable information and explanations would be provided to interest bidders at the conference which were to be complied with by the bidder. Paris and Procacci attended. The requirements included providing 140 assigned (reserved) parking spaces by the bidder for the office's use. See Bid Submittal Form, Page 9 of 25. The requirements contained two provisions directly relating to parking requirements, Paragraphs 11d and 21, and one which is tangentially related concerning compliance with zoning, Paragraph 6. Paragraph 11d provides as follows: Section 11: As part of the bid submittal, bidder are to provide: * * * (d) A scaled site layout showing present location of building(s), location, config- urations and number of parking spaces assigned to the Department, access and egress routes and proposed changes. This is to be drawn to scale. Final site layout will be a joint effort between the Department an lessor to meet the needs of the Department. (Emphasis supplied.) Paragraph 21 provides as follows: Section 21: Parking: For this facility the Department has determined that a minimum of 140 parking spaces are required to meet its needs. This parking is to be under the control of the bidder, off street, suitably paved and lined. This parking is to be provided as part of the lease cost to the Department. Lessor will grant to the lessee an exclusive right to use 140 parking spaces. Lessor shall submit with this bid submittal a letter certifying that the lessor agrees to the requested number of parking spaces on site, states the number of parking spaces per square foot of space as required by the local zoning jurisdiction and provides a site plan of the parking lot identifying the number of parking spaces assigned to specific other tenants. The purpose of this submittal is to assure parking spaces conform to local jurisdiction requirements of number and size, and that the number of parking spaces requested in this invitation can be achieved without infringing on or combining with the parking requirement of other tenants. (Emphasis supplied.) * * * Bidder Response: Parking Being Bid Exclusive spaces available on site. See attached site plan. Non-exclusive spaces available on site. Exclusive spaces off site located from the proposed facility (Distance) Bidder must provide recent evidence of control of all parking spaces being proposed. Permis- sion to park is not control. The provisions of Section 21 were included in the lease because HRS had previously had bad experiences with parking availability. Parking, as evidenced by the requirement for a site plan and certificate to be submitted with the proposal, was an important and material provision of the lease. Both Paris and Procacci submitted bid proposals, including site plans, which were deemed responsive by HRS. HRS considered the proposals of both Paris and Procacci, and performed site visits to both properties. In addition, the evaluators were familiar with both properties. Paris's bid was evaluated to be the lowest and best bid, and HRS noticed the bidders of its intent to award the bid to Paris. At that point, Procacci asserted to HRS that Paris' proposal was deficient because it did not meet the parking requirements in terms of the quantity of parking spaces Paris could provide based upon its submittal because of the zoning requirements and impact of the "out parcels" indicated on the site plan which had been submitted. After being contacted by Procacci, HRS inquired of Paris, pursuant to the terms of the RFP, if it was sure it could provide the parking as required and comply with local zoning. HRS also inquired about the status of the out parcels. Paris advised that, although it had intended to try and develop the areas marked as out parcels, it did not have contracts to develop these areas, and that Paris understood that it could provide the number of parking spaces required to HRS and current and future tenants within the local zoning provisions. HRS, through its counsel, checked with the local zoning official, and was advised that Paris had enough space on site to provide parking spaces complying with local codes for HRS, current tenants, and future tenants. The zoning official's estimates were based upon general assumptions about the nature of the future tenants which affected the space required for parking; however, these assumptions were generally consistent with Paris' development plan. HRS was also advised that in developing the out parcels, Paris would have to comply with existing codes including the provisions for parking. Paris was the owner in fee simple of the site upon which the proposed leasehold and parking lot were located. At the time the bid was submitted, the property contained 168,000 gross square feet of leasable space, of which, 66,000 gross square feet were leased to Belk Lindsey, Dollar General, Community Dialysis, a coin laundry, the DeMarsh Theatre, and the Department of Labor. The property had vacant 101,000 gross square feet of which 18,005 gross square feet were being offered to HRS. The existing leases included governmental uses, commercial uses, medical uses, and a theater. The total area of medical uses is limited to medical clinic and the Dialysis Center which had 5,184 square feet. (Only the portion of the Health Department which is clinic is treated as medical office space, and the remainder is treated as governmental use. See Volume IV, Page 568, line 4. The larger figure (5,184) for the clinic's area stated in Petitioner's Exhibit 9 is utilized for the volume of the clinic instead of Paris' figure of 4,200 square feet.) The total area of governmental uses is 71,336 square feet and includes the Department of Labor (5,000), HRS (18,000), Volusia County Environmental Health (22,277), and Volusia County Health Department (26,059). The total area of commercial uses is 49,016 square feet including Belks (41,490) and Dollar General (7,526). There was a total of 31,624 square feet vacant which Paris planned to lease for government offices. Under city code, the net square area was divided by a factor to arrive at the required parking for each type of use. The factor for the various uses are as follows: Governmental-200 square feet; Commercial-250 square feet; and Medical-100 square feet. The theater would require one space for every two seats and 5 for staff. See Petitioner's Exhibit 9. Utilizing the areas given above and the code's parking factors given above, the governmental offices less HRS would require 267 parking spaces. HRS would require 140 parking spaces. The clinic/dialysis center would require 52 parking spaces. The commercial uses would require 196 parking spaces, and the 232 seat theater would require 166 parking places. It is inferred that the vacant space was to be rented to governmental activities pursuant to the landlord's plan, and would require 188 parking spaces. A total of approximately 1,010 parking spaces would be required for the entire facility computed on gross areas assuming no future changes in the existing leaseholds and the lease of all the vacant space for government offices. The city code utilizes net area to compute parking excluding rest rooms, halls, etc. However, the estimation using gross figures results in a maximum estimate. Paris certified that the parking spaces were controlled by the bidder, that the parking spaces were on site and in the area indicated on the site plan submitted with the bid, and that 980 parking spaces could be accommodated. Paris' site plan also indicated the area in which the 140 parking spaces for HRS would be located. Other tenant parking was not indicated on the site plan; however, none of the other tenants had assigned parking. Paris calculated that a total of 840 spaces were required using the known data for current leases, 140 spaces for HRS, and a factor of one parking space for every 200 square feet of remaining vacant space. The building official opined that the completely leased facility would require between 750 and 1050 parking spaces, and that there was enough space on site to accommodate the required parking. Other competent evidence was received that between 880 and 1,077 parking spaces meeting code requirements could be placed on the site. Estimates by qualified, knowledgeable people varied based upon assumptions about occupancy and use, whether the lot could be "grandfathered in" and how the parking lot was laid out. There were enough spaces to provide parking for the HRS lease and all of the existing tenants at the time of submission of the bid proposal. However, under the existing code provisions, 140 parking spaces could not be accommodated in the rectangle indicated on Paris' site plan. This is not considered to be a material deviation from specifications because Paris had agreed to provide 140 spaces, the final arrangement and placement of the parking for HRS was subject to further negotiation, and the entire parking lot was subject to being relined. If spaces meeting code requirements would not have fit in the rectangle, Paris would have been required to adjust the size of the rectangle or design of the parking until they did fit. This was relatively easy because the other tenants did not have assigned parking. The RFP provided that the successful bidder would have time to remodel the property and to bring it into compliance with existing codes. This would include the parking facilities as well as the building. The HRS staff made a site visit, and were familiar with the property. They concluded that there was sufficient parking, and that Paris had made a valid, supportable offer. Their conclusion was reasonable given the opinion of the local building official and their personal knowledge of the property. The RFP calls for a performance bond, and permits HRS to cancel the contract if the successful bidder cannot perform under the terms of the bid. Minor deficiencies in the proposals of Procacci and Paris, which are not at issue in this case, were waived. The RFP contained no "fatal" deficiency provisions. The ITB stated that HRS reserved the right to waive minor informalities or technicalities, and seek clarification of bids received.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is, RECOMMENDED: That the Petitioner's Petition be dismissed. DONE and ENTERED this 7th day of July, 1995, in Tallahassee, Florida. STEPHEN F. DEAN, 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 7th day of July, 1995. APPENDIX All of the parties filed proposed findings which were read and considered. The following states which of those findings were adopted, and which were rejected and why: Petitioner's Recommended Order Findings Paragraph 1 Paragraph 1. Paragraph 2 Irrelevant. Paragraph 3 Paragraph 5,6. Paragraph 4 Argument and conclusions. Paragraph 5 Paragraph 7. Paragraph 6 First sentence is contrary to best evidence. Second sentence subsumed in other findings. Third sentence is contrary to best evidence. Paragraph 7,8 Subsumed in Paragraph 8. Paragraph 9 Irrelevant. Paragraph 10 Subsumed in Paragraph 6, and Conclusions of Law. Paragraph 11 Subsumed in Paragraph 8. Paragraph 12 No confusion exists. The terms of the RFP are clear. Paragraph 13 Rejected. There is no requirement to indicate on the site plan "existing" parking, unless it is assigned to an existing tenant. There was no assigned parking for existing tenants. Paragraph 14 Rejected. Paris' letter is based upon assumptions regarding future occupancy and uses; however, the site plan is not based upon those assumptions. Paragraph 15 Irrelevant. Paragraph 16 See comments to Paragraph 14. Paragraph 17 It was confusion for Paris to include parking spaces in areas marked "Future out parcels" on his site plan; however, this was clarified by HRS in its discussions with Paris, which indicated that there were no planned uses for those areas. Paragraph 18 The figure of 937 spaces is not mentioned on either of the two pages referenced. See discussion in Paragraph 19, Findings of Fact. Paragraph 19 Paris did not certify 980 "existing" spaces. He certified that the parking lot could accommodate 980 parking spaces. Paragraph 20 Contrary to facts. The 813 figure was not "identified" by HRS. Further, it is unclear from the reference to what the figure referred. Paragraph 21 Subsumed in Paragraph 9 et seq. Paragraph 22 See discussion of Paragraph 17, above. Paragraph 23 Subsumed in Paragraph 9 et seq., and Paragraph 13-18. Paragraph 24 Subsumed in Paragraph 19. Paragraph 25 Rejected as argument. Use of gross figures increases the number of required spaces; therefore, is not misleading in making estimates of future needs. Paragraph 26 Rejected as argument, and contrary to facts which indicates that HRS did conduct site visits, was familiar with the facilities, and checked challenged information with city building officials. Paragraph 27-29 Irrelevant, and subsumed in Paragraph 8. Respondent's Recommended Order Findings Paragraph 1 Paragraph 1 Paragraph 2,3,4 Subsumed in Paragraph 8. Paragraph 5 Subsumed in Paragraph 4. Paragraph 6 Subsumed in Paragraph 8. Paragraph 7 Irrelevant. Paragraph 8 Subsumed in Paragraphs 8,13,19. Paragraph 9 Subsumed in Paragraphs 4,5. Paragraph 10 Subsumed in Paragraph 7. Paragraphs 11,12 Subsumed in Paragraphs 5,19. Paragraphs 13,14 Subsumed in Paragraph 13 et seq. Paragraphs 15,16 Subsumed in Paragraph 19. Paragraph 17 Subsumed in Paragraph 13 et seq. Paragraphs 18-21 Irrelevant. Paragraphs 22-24 Subsumed in Paragraphs 8,23. Paragraph 25 Subsumed 22,24. Paragraphs 26-28 Subsumed in Paragraph 6. Paragraph 29 Subsumed in Paragraph 2. Paragraphs 30,31 Subsumed in Paragraphs 8,19. Paragraph 32-34 Subsumed in Paragraph 13 et seq. Paragraph 34 Subsumed in Paragraph 19. Paragraph 35 Irrelevant. Paragraph 36,37 Subsumed in Paragraph 19. Paragraph 38 Subsumed in Paragraph 15. Paragraph 39 Subsumed in Paragraph 11. Paragraphs 40-42 Subsumed in Paragraph 13 et seq. Paragraphs 43,44 Subsumed in Paragraph 17. Paragraphs 45,46 Subsumed in Paragraphs 23-24. Paragraph 47 Paragraph 18. Paragraphs 48,49 Subsumed in Paragraph 19. Paragraphs 50,51 Under the terms of the RFP, Paris had the opportunity to bring the facilities into code compliance. Failure to do so was a basis for terminating the contract. See Paragraph 20. Paragraph 52 Subsumed in Paragraph 19. Paragraphs 53-60 Subsumed in Paragraphs 10-12. Paragraph 61 Paragraph 19. Paragraph 62 Paragraph 8. Paragraphs 63,64 Conclusions of Law. Intervenor's Recommended Order Findings Paragraphs 1-4 Paragraphs 1-4 Paragraph 5 Paragraph 2 6,7 Not necessary to determination of issues. Paragraphs 8i-vii Subsumed in Paragraphs 5,6,8,10,19,21. Paragraph 9 Paragraph 13. Paragraphs 10i-viii, 11i-iv,12i-vi Paragraphs 13-17,21 Paragraph 13 Paragraph 8. Paragraphs 13i-ii Ir-relevant. Paragraph 13iii Paragraph 8. Paragraphs 13iv,v Irrelevant. Paragraphs 15-15iii Paragraphs 8,23. Paragraphs 16i-ii,17 Paragraph 8. Paragraph 18 Paragraph 9. Paragraphs 19,20 Paragraphs 10-12. Paragraphs 21i-v Paragraph 19. Paragraphs 22i-vii Conclusions of Law. Paragraphs 23i-iv Paragraph 19. Paragraph 24 Irrelevant. Paragraph 25 Conclusions of Law. Paragraph 26i-viii Paragraph 19. COPIES FURNISHED: Robert A. Sweetapple, Esquire Sweetapple, Broeker, and Varkas 465 East Palmetto Park Road Boca Raton, FL 33432 Ellen Phillips, Esquire HRS District 12 Legal Office 210 North Palmetto Avenue, Suite 412 Daytona Beach, FL 32114 Robert W. Morrison, Esquire Wells, Allen, Lang and Morrison 340 North Orange Avenue Orlando, FL 32801 Robert L. Powell, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700
The Issue The issue to be resolved in this proceeding concerns whether the Respondent Department acted fraudulently, arbitrarily, illegally or dishonestly in making a decision to award Central Florida Legal Services, Inc., the Intervenor, a bid concerning a proposed contract to enter into Lease No. 800:0045. Embodied within that general issue are questions involving whether the Petitioner, Robert Allan Weinberg's (Weinberg) response to the Department's Invitation to Bid (ITB) was responsive, was the lowest and best bid and whether the Intervenor's bid was responsive to the ITB and was the lowest and best bid. Finally, it must be determined whether the Department properly evaluated the bid proposals in accordance with legally-acceptable, competitive bidding principles, in an honest and non-arbitrary fashion.
Findings Of Fact This dispute arose upon the Department electing to seek office space for personnel of its District 12, in Daytona Beach, Florida. After considering the type and nature of the facilities it needed, the Department ultimately published a set of specifications for the desired facility in an ITB. The ITB included detailed instructions for preparation and submittal of bids and a relevant form. A pre-bid conference was conducted and thereafter, three vendors submitted bids. One proposal was determined by the Department to be non- responsive because the amount of space contained in the bid proposed by that vendor did not meet the Department's specifications contained in the ITB. That agency decision was not contested. The bid submitted by the Intervenor, as well as the Petitioner, were both determined to be responsive by the Department. After evaluating the proposals based upon criteria contained in the ITB, the Department ultimately determined that the lowest, best and most responsive bid was that submitted by the Intervenor. It notified the bidders of its decision to award the subject bid to the Intervenor, and the Petitioner filed a protest. A formal written protest was timely filed, initiating this proceeding. The issues raised by the parties, concerning the relative responsiveness of the two bids, revolve around the question of adequate parking, the status of existing tenants in the buildings, a consideration required by the terms of the ITB, the question of adequacy of "dry and measurable" space, the question of "location" (including building appearance, appearance of the property, the character of the neighborhood, security issues, design or layout of the proposed space, and provision for future expansion). Petitioner's Responsiveness The Petitioner's response to the ITB is deficient in terms of provisions for parking, as well as concerning the disclosure of the status of existing tenants in the Petitioner's building. The parking facilities offered by the Petitioner do not meet the requirements of the ITB. The ITB requires that 60 parking spaces be available for the exclusive use of the Department. Petitioner's Exhibit 1, Item 21 in evidence (the ITB) provides: For this facility, the Department has determined that a minimum of 60 parking spaces are required to meet its needs. Its parking is to be provided as part of a lease cost to the department. The lessor will grant to the lessee an exclusive right to use 60 parking spaces. Lessor shall submit with this bid submittal a letter certifying that the lessor agrees to the requested number of parking spaces on site, states the number of parking spaces per square foot of space as required by the local zoning jurisdiction and provides a site plan of the parking lot identifying the number of parking spaces assigned to specific other tenants. The purpose of this submittal is to assure parking spaces conform to local jurisdiction requirements of number and size, and that the number of parking spaces requested in this invitation can be achieved without infringing on or combining with the parking requirement of other tenants (emphasis contained in original document). The Petitioner's bid submittal does not show spaces assigned to specific other tenants, as required by the ITB, and does not state the number of parking spaces per square foot of space required by the local zoning jurisdiction, which is the City of Daytona Beach, Florida. The Petitioner proposes to house the Department in two sections of an existing building. Those sections are presently occupied by other tenants. Other space within the building is also presently occupied and will continue to be occupied, even if the Department decides to lease the Petitioner's space at issue. The Petitioner's site plan shows that it has 92 spaces available to serve tenants in that building located on the building site. In addition to those spaces, the Petitioner proposes to use eight (8) additional spaces located off-site. Certain space in the Petitioner's proposed building is presently leased to the Florida Department of Health and Rehabilitative Services (HRS). That lease will remain in effect even if the Petitioner leases the space at issue to the Department. Under that HRS lease, 29 spaces are committed to HRS on an exclusive basis, with six (6) other spaces on a non-exclusive basis. There is additional office space in the building presently occupied by private businesses, which totals 4,470 square feet. Under the City of Daytona Beach Code, the parking requirement for 4,470 square feet of commercial office space, in a building the size of the Petitioner's is 16 spaces. The eight (8) parking spaces off the building site, proposed to be used by the Petitioner, are adjacent to and serve an existing building that also houses a private business. That building has 16 total parking spaces, including the eight (8) which the Petitioner is proposing to allocate to the agency, if the bid is awarded. The building contains 3,900 square feet. Under the City of Daytona Beach Code, it must have a minimum of 14 parking spaces for that square footage. If the Petitioner leased space to the Respondent, its total parking space requirement to serve all of its tenants, including the proposed office space, under the City of Daytona Beach Code, would be 125 spaces. Eighty-nine (89) of those spaces would be for the exclusive use of the Respondent and HRS. The Petitioner's site plan, however, reveals that only 108 spaces are available, including the spaces at the off-site location. Additionally, the existing parking spaces of the Petitioner, designed to serve handicapped persons, do not conform to the current City of Daytona Beach Code. Handicapped parking spaces are required by that Code to be 12 feet wide, with an additional five feet provided for access of handicapped persons. In order to meet this dimensional requirement, the Petitioner's need for parking spaces to accommodate all tenants, will increase by four (4) spaces. He will need a total of 129 spaces to accommodate all tenants, including the Department, should the bid be awarded. He has only 108 spaces available. Mr. Weinberg testified on behalf of the Petitioner, to the effect that the parking lot could be re-configured in order to gain 13 more spaces. This did not include the four additional spaces that would be needed to properly accommodate the handicapped parking spaces to the requirements of the City of Daytona Beach Code. The Petitioner's bid submittal plan, however, does not reflect any site plan involving re-configuration of the parking area. Moreover, it was not established that the reconfiguration proposed by the Petitioner can be accomplished under the mandates of the City of Daytona Beach Code. If it could, the Petitioner would still not have sufficient spaces to meet the requirements in the ITB, as well as the requirements of existing tenant leases and code requirements, concerning parking spaces for relevant amounts of building square footage allocated to the various tenants. The Petitioner's bid also does not meet the criteria of the ITB containing the status of existing tenants. The ITB requires that vendors provide information regarding the rights of existing tenants, including written documentation regarding their status, as that relates to the availability and the time of availability of the space proposed in the bid. The ITB provides, in pertinent part: Existing tenants: If the offered space or any portion thereof (including parking areas) is at present occupied or will be covered by an active lease(s) at the stated availability date, written documentation by the tenant indicating acknowledg- ment of the lessor's bid and ability to vacate premises by the proposed date or earlier to allow lessor's renovation work to be completed must be included with the bid submittal. If the existing tenants are on a month-to-month lease, the bidder must provide a letter of explanation of this condition. There are two existing tenants in the space which the Petitioner has proposed to lease to the Department. The Petitioner offered no written documentation from either tenant indicating acknowledgment of the bid and lessee's ability to vacate the premises. The only information which the Petitioner provided was for one of those tenants and that was not signed nor acknowledged by the tenant. No information was provided, as required by the ITB, as to the other tenant. Intervenor's Responsiveness The Petitioner maintains that the Intervenor's proposed office space was not "dry and measurable" at the time the bid was submitted by the Intervenor. The Petitioner also contends that the Intervenor's bid does not meet the parking facility requirements of the ITB. The criteria in the ITB require a definition of "dry and measurable" space available and also contain provisions allowing the vendor time to complete the facility through renovation, etc., subsequent to the bid submittal, but prior to the occupancy time specified in the ITB. The ITB provides, on page 2 in the second paragraph: Space to be made available: 07-01-95 or within 182 days after notification of bid award, whichever occurs last. Under the heading, "Handicap Standards and Alterations", at page 4 of the ITB, the ITB provides: Lessor agrees that the demised premises now conform, or that, prior to lessee's occupancy, said premises shall, at the lessor's expense, be brought into conformance with the require- ments of Section 553.48, F.S., providing requirements for the physical handicapped and the requirement of public law 101-336, July 26, 1990, known as the "American With Disabil- ities Act of 1990.". . . The proposed space must be in an existing building or a building which is to be complete by July 1, 1995, and is 50 percent complete on the bid deadline submission. To be considered as existing, the entire space must be dry, fully enclosed, and capable of being physically measured, to determine net rentable square footage, at the time of bid submittal. Reno- vations to bring the facility into compliance with all applicable federal, state, and local codes and regulations and/or to meet with desired arrangements are permitted, if carried out in accordance with prescribed procedures: Bids offering multi-story or multi-level buildings must have all stories serviced by an elevator which meets the requirements of DCA accessibility manual . . . (emphasis in original). The Intervenor's proposal meets these requirements. The facility proposed by the intervenor is in an existing building. "Dry and measurable" means that the facility has exterior walls and a roof and is at least enclosed enough as to not to become wet or to be wide open to the elements. The Intervenor's proposed building has exterior walls and a roof and is enclosed with windows and doors secured so that it would not get wet or be open. There is ample space within the Intervenor's existing building to determine the net rentable square footage and to ensure that the square footage being offered meets the bid specifications. In fact, measurement was undertaken by the Intervenor's representative, including its architect, and the space and site plans were made available to representatives of the Department, who were in a position to make the same measurements when they conducted a site visit of the premises. The only part of the facility that was not dry and measurable at the time of bid submission was a proposed new elevator, and entrance space related to the elevator, which the Petitioner has proposed to construct in order to meet the "Americans with Disabilities Act" requirements. The elevator and related space needed to accommodate entrances into the second floor of the building by the elevator were not dry and measurable at the time of bid submission and were not required to be by the terms of the ITB. The express provisions of the ITB allow vendors to renovate facilities in order to meet government regulations "prior to lessee's occupancy." The vendor is not required to have the space ready for occupancy until July 1, 1995, or 182 days after notice of award, whichever is later. The Intervenor has committed to complying with these requirements of the ITB and will be subject to a penalty if it does not, should the bid be awarded. Thus, if the vendor is offering a multi-story building, it is not required to have a handicapped accessible elevator already in place and operating at the time of bid submission. It simply must be installed prior to the lessee's occupancy. Therefore, under the terms of the ITB referenced above, the elevator-related space would not be required to be part of the dry and measurable space computation submitted with the bid. The Department agreed at the pre-bid conference that the 60 exclusive parking spaces it would require, as specified in the ITB, would meet the ITB criteria if within 1,000 feet of the building. In response to this criteria, the Intervenor offered most of the required spaces at the site of its building. It also offered to make spaces available at three other locations as alternatives. It offered to make 48 of the 50 spaces it has on its own building site exclusively available to the Department and also offered 21 parking spaces on "Lot B" or "Parcel B", as delineated in its bid. This lot is within 1,000 feet of the Intervenor's building, which was offered in the bid, and is approximately 350 feet away. It can accommodate the 21 parking spaces, but will necessitate a variance from zoning requirements, in order to place 21 spaces on Lot B. The ITB allows bidders 30 days from the date of any award to deal with such zoning issues and resolving any zoning problems. If this lot is used, the Intervenor will seek a variance in order to be able to put the 21 spaces on the lot. The Intervenor does not yet have the variance, but there is no evidence of record that would establish that it cannot be obtained from the City zoning authority. The Intervenor has an option to lease Lot B, where the 21 parking spaces would be located, and, therefore, has sufficient control of it. Another alternative offered by the Intervenor is designated as "Lot A" or "Parcel A" in its bid. This lot is across an existing municipal parking lot from the Intervenor's facility being offered. It includes 69 parking spaces and is within 1,000 feet of the Intervenor's building. The Intervenor has secured this facility through an option to purchase. The only remaining step in order to purchase the lot would be for the Intervenor's board, responsible for the operation of its programs, including the building, to execute the option it has already entered into. This also constitutes sufficient control over the property to comply with the terms of the ITB. This parking lot and the spaces thereon meet the requirements of the ITB. The third nearby lot, available to the Intervenor, is designated as "Parcel D" or "Lot D" on the Intervenor's bid documents. Additional spaces could be made available on this lot. It is 1,070 feet away from the Intervenor's building, however, and thus does not meet the 1,000-foot requirement set by the Department at the bidders' conference, in its interpretation of the specification concerning parking. The demonstrated availability of the other parking areas and spaces, however, establishes that the Intervenor has sufficient parking available, within the required distance, to meet the terms of the ITB. Moreover, the Intervenor's building will house the office of the Intervenor, as well as the office of the Respondent/Department. The Intervenor's building is located directly adjacent to a free municipal parking lot. This lot would be available to employees of the Intervenor, as well as Intervenor's visitors, and as well as to employees of the Department and the Department's visitors, who, for whatever reason, might not use the exclusive dedicated parking spaces. Because it is in a downtown development area, the Intervenor is not required, under the City of Daytona Beach Zoning Code, to provide any parking for its building. Bid Evaluations The Department received bid responses from the two parties and proceeded to evaluate them. The part of the evaluation based upon prices bid by the vendors was conducted by Department personnel in Tallahassee. The part of the evaluation based upon more subjective factors was conducted by three Department employees in Daytona Beach, who ultimately have to work in the facilities that the Department acquires through this procurement process. The price evaluation was undertaken with the assistance of a representative of the Department of Management Services, who is familiar with statutory and rule requirements for a proper evaluation of bids. Price was apportioned 40 of the total 100 points available in the bid evaluation process. The price evaluation resulted in the Petitioner receiving 40 points because it had the lowest price of the two subject bids. The Intervenor received 33 points for the price criterion. The three Department employees designated to evaluate the other aspects of the bid proposals conducted site visits at each of the vendors' facilities. During the site visits, the evaluators walked through the parking lots and counted the spaces, checked the exit door locations, inquired about heating, ventilation, and air-conditioning facilities and equipment, evaluated the condition of the buildings and how they were being maintained, checked security lighting and other security issues, checked on placement of the lobbies and how offices would be positioned, observed the availability of natural lighting and surveyed neighborhood conditions. Each evaluator then conducted evaluations based upon factors other than cost, without consulting each other. They used an evaluation form that relates to various criteria which come directly from the ITB. Upon completion of the evaluations, the completed forms were forwarded to the Tallahassee office of the Department. The evaluation criteria allow three categories of evaluation under the general heading of "location". Ten points are allowed as a maximum in the category of "availability and frequency of public transportation within the proximity of the space being offered." The evaluators gave the Petitioner five, six and five points, respectively, for its response to this category. They gave the Intervenor seven, six and five points. Both facilities have public bus stops near the building which provide good access to public transportation. The Intervenor's facility is located within a few blocks of the transit transfer station, which offers the advantage that bus passengers will be able to get to the Intervenor's facility without the need of a transfer which could save them considerable time. The Department of Juvenile Justice is the type of state agency which has a great deal of business with clients and their family members of a lower-income status, who might frequently have to rely on public transportation. Nine (9) points are allowed in the evaluation criteria for the category of "appearance of the building property and neighborhood of the property being offered," under the general heading of "location". The Petitioner was accorded three, five and four points, respectively, for its response to this category. The Intervenor was given nine, eight and seven points. This is admittedly a subjective criteria. The appearance of a facility and its surrounding area can make a difference in the morale and productivity of the working staff, as well as the attitude of visitors to the facility. The Intervenor's building is in a renovated, historic structure located in the historic preservation section of the downtown area of Daytona Beach. It has a great deal of aesthetic appeal and has been the subject of several newspaper articles noting the attractiveness and functionality of the renovation. The Petitioner's structure, on the other hand, although well-landscaped and maintained, is a metal, prefabricated building, not as aesthetically interesting or pleasing. It is also located adjacent to higher crime areas in the City. The evaluation criteria allow for four points for the category of "security issues posed by the building and surrounding area" under the category of "location". The evaluators scored the Petitioner's response at two, two and one points for this subject. They scored the Intervenor's bid three, three and two points for the same category. It is apparent that the Petitioner's facility is located in an area which is somewhat crime-prone. While the evidence does not reflect any criminal activity on the Petitioner's site itself, at least one evaluator was intimately and personally familiar with the neighborhood and the criminal problems occurring there. This familiarity was confirmed by Department personnel from police reports showing the area to be a high-crime area. Under the "facility" heading, the evaluation criteria and form allows points for four different categories. It allows 15 points for the category of "susceptibility of the design and space being offered to good utilization by differing segments of the Department." The evaluators gave the Petitioner seven, five and six points for their three evaluations of this response. They scored the Intervenor's submittal at 15, 12 and 10 points. The Intervenor's proposal offers a building that has windows on all four sides with abundant natural lighting, good visibility, and contiguous space. The Intervenor's facility can be very easily renovated into appropriate space for the different segments of the Department. The Petitioner's facility, on the other hand, has few windows, offers limited natural lighting and is not easily visible from the street. Additionally, the Petitioner offered divided space within its building so that some segments of the Department's work force would be physically separated from one another, with access between the two divided areas of office space being only obtainable by going outside the building and then in another door of another part of the building. The evaluation form also allows 10 points for the category of "susceptibility of the building parking area and property as a whole for future expansion." The Petitioner received a score of three, five and five points for this category by the evaluators. The Intervenor's response received seven, eight and three points for the same category. The Petitioner's facility offers no opportunity for expansion unless existing lessees leave the building. There is no room for additional parking for expansion purposes. The Intervenor's facility has space on the first floor not being leased at all at the present time and a portion of the third floor could be enclosed to provide additional space. Further, since the only other tenant is the lessor, there is a prospect that the lessor itself might move to other facilities in order to accommodate Department expansion. Lot A offers considerably more parking spaces than the Department or other tenants of the Intervenor's building need. Furthermore, the Intervenor's facility is located adjacent to a free, municipal parking lot which is only moderately used. Under the same general heading of "facility", the evaluation form and criteria allows ten points for the category of "having all the square footage in a single building will earn more points than square footage offered in more than one building." The Petitioner is offering space in a single building. However, the Petitioner's space would be divided so that the Department's office space would not all be contiguous, and personnel would have to go from one side of the building to the offices on the other side of the building only by going outside the building. This is functionally akin to space being in more than one building. Thus, the Petitioner's proposal would have some of the disadvantages of being like a proposal for more than one building. Workers would not be as readily able to assist one another in dealing with work loads or as easily undertaking many of the work activities requiring them to communicate with each other in each other's physical presence as easily as in a contiguous set of offices located in a single building. It is true that the Petitioner is proposing all of its space in one building. Thus, it meets the ITB criteria in this regard. It also can be argued as the Department evaluators found, that because the space functions akin to being in separate buildings, because of the separation of the offered office spaces, it should be evaluated as being somewhat analogous to space located in two separate buildings. Thus, although both bids were responsive to the ITB in terms of offering space physically and technically within a single building, it was not arbitrary for the evaluators to accord more weight to the Intervenor's response, since all of the office offered by the Intervenor is contiguous space in the same building. However, even if the evaluators had or should have ranked both bids equally under this "single building criteria", that alone would not alter the evaluators' result that the Intervenor's bid and facility was the best response to the agency's needs expressed in the ITB. The evaluation criteria and form also allows a maximum of two points to be accorded to the category of "if space is offered in more than one building, are the buildings connected by overhangs and sidewalks," under the heading of "facility". The space offered by both bidders, the Petitioner and the Intervenor, is clearly in a single building. All of the evaluators gave both parties an equal two points for this category which shows a lack of arbitrariness in the bid evaluation process. When the evaluation was complete, the Intervenor was accorded scores of 86, 82 and 72 points by the three evaluators. Two of the evaluators rated the Intervenor significantly higher, and the third favored the Petitioner's proposal by a single point. The total score given the Petitioner, taking into account its lower price, was 67, 71 and 73 points by the three evaluators. The total score accorded the parties by the three evaluators shows that the Intervenor's proposal was accorded a substantial advantage by two of the three evaluators. The evaluator scores were independently determined but were still generally consistent with each other. They were based upon logic and not merely upon a review of plans, figures, and written responses but also upon a detailed view of the two properties, parking spaces, and the like. Thus, it is determined that the scoring was consistent, logical, and not shown to be unreasonable under the circumstances. Based upon the scores by the evaluators, the Department determined that the Intervenor's bid was the lowest, best and most responsive and elected to award the lease to the Intervenor. There has been no preponderant proof offered to show that the decision or any of the evaluation decisions on individual categories, leading up to the ultimate score and decision to award, were fraudulent, arbitrary, illegal, or dishonest.
Recommendation Based on the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is RECOMMENDED that a Final Order be entered by the Department of Juvenile Justice dismissing the Petitioner's formal protest because the Petitioner lacks standing to initiate the subject proceeding and because the Petitioner has failed to establish that the determination to award a contract to the Intervenor was fraudulent, arbitrary, illegal or dishonest. DONE AND ENTERED this 15th day of June, 1995, in Tallahassee, Florida. P. MICHAEL RUFF, 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 15th day of June, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-1736BID Respondent's and Intervenor's Proposed Findings of Fact The proposed findings of fact of these two parties are accepted to the extent that they are not inconsistent with the findings of fact made by the Hearing Officer. Certain proposed findings of fact accepted as true are immaterial to the resolution of the issues presented. Petitioner's Proposed Findings of Fact A-F. Accepted. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter, and as not entirely in accordance with the preponderant evidence of record. Accepted. Accepted, but not itself materially dispositive. J.(1-3) Rejected, as not being entirely in accordance with the preponderant evidence of record, and as subordinate to the Hearing Officer's findings of fact on this subject matter. K-L. Rejected, as not being entirely in accordance with the preponderant evidence of record, and as subordinate to the Hearing Officer's findings of fact on this subject matter. M. Accepted, but not itself materially dispositive. N.(1-6- Subparts) Rejected, as not entirely in accordance with the preponderant evidence of record, and as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected, as not entirely in accordance with the preponderant evidence of record, and as subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted. COPIES FURNISHED: Calvin Ross, Secretary Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100 Mr. Robert Allan Weinberg RW Custom Builders, Inc. 955 Orange Avenue Daytona Beach, Florida 32114 Scott C. Wright, Esquire Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100 G. Steven Pfeiffer, Esquire APGAR, PELHAM, ET AL. 909 East Park Avenue Tallahassee, Florida 32301
The Issue The issue for determination is whether the Florida Department of Labor and Employment Security illegally rejected Petitioner's bid as nonresponsive.
Findings Of Fact Fred Boozer, Sr., (Boozer), the Petitioner, owns Boozer Properties, a family business which includes a building at 2235 South Babcock Street, Melbourne, Brevard County, Florida. The building is currently occupied by staff of the Florida Department of Labor and Employment Security (LES) and other tenants. In south Brevard, LES staff also occupies another building in Palm Bay. Because of staff expansion and the need to co-locate its offices, LES issued a Request for Proposal (RFP) for Lease No. 540:0904 on January 28, 1992. The RFP had been previously advertised but was successfully challenged on issues unrelated to the issues in this proceeding. The January 1992 RFP sought approximately 11,474 to 11,818 square feet of office space. The RFP also specified that 95 off-street parking spaces be provided for the exclusive use of LES employees and clients. The spaces were to be suitably paved and lined, and under the control of the bidder. The RFP advertised a pre-proposal conference on February 4, 1992. No bidder attended, and no objections to the RFP were filed. Six responses were received on the February 28th deadline, one of which was immediately determined to be nonresponsive. The remaining bid proposals were evaluated, and Boozer's bid, offering his Babcock Street site, and 95 parking spaces, received the highest points from the evaluation committee. During a recent LES bidding process for office space in West Palm Beach, a problem arose with a bidder's ability to provide the required parking spaces. Cognizant of this, the LES leasing manager contacted the City of Melbourne to determine whether the apparent bid winner, Boozer, could meet his obligation to provide 95 spaces. The written response dated March 20, 1992, from Dominic Mauriello, a Melbourne city planner, provides his estimation that, for the various uses in the Babcock Street building, 207 parking spaces would be required. The memo states that a site plan on file at the city planning office reflects that there are 165 spaces. The site plan attached to Boozer's bid proposal submitted to LES indicates that 175 spaces are available. LES staff person, Lynne Mobley, telephoned Fred Boozer on March 24, 1992, informing him of the memorandum from the city. He responded with a request that he be allowed twenty-four hours to provide additional information. By March 27, 1992, the LES leasing office had not received further information from Boozer. The RFP had advertised a 30-day deadline for the bid award, which deadline fell on a weekend. The agency considered that it needed to make the award on Friday, the 27th. After contacting the City of Palm Bay to assure that the next highest rated response could deliver the requisite parking spaces, a letter was sent notifying Woodlake S.W. No. 1, Ltd., (Woodlake) of its award. In a letter dated March 27, 1992, LES notified Boozer that its bid was determined nonresponsive based on the outcome of investigation and consultation with the city regarding his inability to produce the required 95 exclusive spaces. In the meantime, Fred Boozer had contacted Peggy Bray, the City's Planning and Zoning Administrator, who provided an amended estimation stating that 190 spaces would be required for the Babcock Street site, and that the site currently includes 184 parking spaces. Ms. Bray's letter, dated March 27, 1992, states that in order to provide 95 spaces for the Department of Labor, 1800 square feet of office space would need to remain vacant. The Bray letter was immediately sent by facsimile transmission to LES, and was received the afternoon of March 27th, after the award and rejection notices were sent. Boozer's building is approximately 39,000 square feet. Several tenants are month to month lessees, and another tenant is expected to move prior to the beginning of the LES lease term. Boozer is willing to keep vacant the 1800 square feet and contemplated that necessity when he submitted his bid proposal. He did not include this agreement in his written bid response, but neither did LES specifically ask, either in the bid form or at the time of the committee's site walk-through prior to the bid award. Boozer contends that he responded on the bid proposal that he would provide 95 exclusive spaces and he remains willing to provide those spaces. At hearing, Boozer disclosed that 20 additional parking spaces are located adjacent to the subject property and are available for use by HRS' County Health Services, another tenant in the Babcock Street building. The spaces would reduce by 20 the spaces required by the city code, but their existence was not disclosed in the bid proposal as they are not part of the attached site plan. Boozer's onsite parking spaces range from one-half to one foot short of the eleven-feet width required by the city code. No evidence was presented with regard to any pending or contemplated enforcement action, and LES did not base its decision on this defect. LES did base its decision on a good-faith reliance on the communication by a member of the City of Melbourne planning staff. Even when that initial communication was corrected by the planning administrator, the number of spaces available were still less than needed for LES purposes and to comply with the City's code. LES did not anticipate, nor was it informed prior to bid award, of Boozer's ability and willingness to keep space vacant to comply with his commitment to provide 95 parking spaces to LES.
Recommendation Based on the foregoing, it is hereby, recommended that a final order be entered dismissing Petitioner's protest of intended bid award. RECOMMENDED this 18th day of June, 1992, in Tallahassee, Leon County, Florida. MARY CLARK 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 18th day of June, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-2372BID The following constitute specific rulings on the findings of fact proposed by the parties. Petitioner's Proposed Findings of Fact Adopted in paragraphs 2, 3 and 4. Adopted in paragraphs 4 and 9. Adopted in paragraph 6. Adopted in substance in paragraph 7. Rejected as unnecessary. The testimony of Ms. Mobley is that she did not receive the message. Adopted in paragraph 10. Adopted in paragraphs 8 and 9. Adopted in paragraphs 10 and 13. Rejected as unnecessary. 10-13. Adopted in paragraph 11. Rejected as unsubstantiated by competent evidence. Adopted by implication in paragraph 5. Rejected as irrelevant, except as to Intervenor's spaces, which is adopted in paragraph 8. 1718. Rejected as unnecessary and irrelevant. Respondent's Proposed Findings of Fact 1. Adopted in paragraph 3. 2. Adopted in paragraph 1. 3. Adopted in paragraph 2. 4-5. Adopted in paragraph 4. 6-7. Adopted in paragraph 5. 8. Adopted in paragraph 6. 9. Adopted in paragraph 7. 10-11. Adopted in paragraph 8. 12. Adopted in paragraph 10. 13. Adopted in paragraph 12. 14. Adopted in paragraph 9. Intervenor's Proposed Findings of Fact 1-2. Adopted in substance in paragraph 3. 3. Rejected as unnecessary. 4-5. Adopted in paragraph 4. Adopted in paragraph 3. Adopted in paragraph 4. Adopted in paragraph 11. Adopted in paragraph 4. Adopted in paragraph 5. Adopted in paragraph 6. Adopted in paragraph 7. Adopted in paragraph 10. Adopted in paragraph 9. 15-16. Adopted in paragraph 8. Rejected as unnecessary. Adopted in Preliminary Statement. 19-28. Rejected as unnecessary. COPIES FURNISHED: Howard M. Swerbilow, Esquire Post Office Box 541271 Merritt Island, FL 32954-1271 Edward A. Dion, Esquire Department of Labor and Employment Security Suite 307, Hartman Building 2012 Capital Circle Southeast Tallahassee, FL 32399-2189 Jack Spira, Esquire 5205 Babcock Street N.E. Palm Bay, FL 32905 Alan Taylor Elizabethan Development Corporation 245 Avenue O S.W. Winter Haven, FL 33880 Frank Scruggs, Secretary Department of Labor and Employment Security 303 Hartman Building 2012 Capital Circle S.E. Tallahassee, FL 32399-2152 Cecilia Renn Chief Legal Counsel Department of Labor and Employment Security 303 Hartman Building 2012 Capital Circle S.E. Tallahassee, FL 32399-2152
