The Issue Whether Respondent should sustain Petitioner's challenge to the preliminary determination to award Bid No. DCPHU 10-91 to Kinney System of Florida, Inc.?
Findings Of Fact Based on the record evidence, the following Findings of Fact are made: In November, 1991, Respondent issued Invitation to Bid No. DCPHU 10-91 (hereinafter referred to as the "ITB"). Through the ITB, Respondent solicited bids to manage the Dade County Public Health Unit's parking lot located at 1350 N.W. 14th Street in Miami, Florida. The managerial responsibilities to be assumed by the successful bidder were described in the ITB as follows: That the OWNER will grant unto the MANAGER, the full exclusive management rights to operate a public parking service, and said MANAGER will take the exclusive rights to operate upon the premises and driveways, of what is commonly known as a "Public Parking Service" at and for the Dade County Public Health Unit. The term "Public Parking Service" as indicated above, is defined as meaning "those patrons wishing to avail themselves of a paid parking service." MANAGER will furnish competent and courteous uniformed parking attendants, during the times and on the days and hours as may be deemed necessary, and to be set forth by the OWNER. It is understood and agreed, all employees are in the employ of MANAGER, solely and not in the employ of OWNER. OWNER is in no way liable to employees for their wages or compensation. That in consideration for such services, the OWNER will allow the MANAGER the exclusive right to charge, collect the established fees for all those wishing to have their cars parked upon the parking premises. All fees must be approved by the OWNER. The ITB indicated that, in order to be deemed a "qualified bidder," the bidder "must be licensed to do business in the State of Florida." The following advisement was given in the ITB regarding how the bids of "qualified bidders" would be evaluated: Bidders shall be evaluated on the basis of proposal for operating the lot, proposed rates, proposed net income distribution, proposer's financial condition, prior job performance, and recommended detailed anticipated operating expense budget for a twelve (12) months [sic] period. So that Respondent would have information upon which to evaluate the financial condition of those submitting bids, the ITB directed all bidders to submit: "1. COPY OF 1990 OR LATEST FINANCIAL STATEMENT AND 2. FEDERAL INCOME TAX RETURN AND 3. ANNUAL REPORT."1/ There are three basic types of financial statements that accountants prepare: those that are the product of an audit (hereinafter referred to "audit statements"); those that are the product of a review; and those that are the product of a compilation (hereinafter referred to as "compilation statements"). Of the various types of financial statements produced by accountants, certified audit statements are considered to be the most reliable and compilation statements that are produced without the benefit of the accountant's examination of the source documents and materials upon which they are purportedly based are considered to be the least reliable. In preparing such compilation statements, the accountant simply puts the figures he has been provided by his client in financial statement form without verifying the accuracy of these figures. Accordingly, it is standard practice in the accounting profession for accountants to warn readers of such compilation statements that they "do not express an opinion or any other form of assurance on the[se statements]." The ITB did not specify what type of financial statement bidders had to submit along with their bid. There was no indication in the ITB that a compilation statement would be deemed unacceptable. Petitioner submitted a timely bid in response to the ITB. Its bid was accompanied by the financial statement required by the ITB. The financial statement was a compilation statement prepared by Petitioner's accountant, Herbert Ehrlich. Appended to the statement was a letter written by Ehrlich. The body of the letter read as follows: We have compiled the accompanying balance sheet of Centre City Parking Inc. as of December 31, 1990, and related statement of income, retained earnings and supporting schedules, for the year then ended, in accordance with standards established by the American Institute of Certified Public Accountants. A compilation is limited to presenting in the form of financial statements information that is the representation of management. We have not audited or reviewed the accompanying financial statements and, accordingly, do not express an opinion or any other form of assurance on them. Management has elected to omit substantially all of the disclosures and the statement of cash flows required by generally accepted accounting principles. If the omitted disclosures and statement of cash flows were included in the financial statements, they might influence the user's conclusions about the company's financial position, results of operations and cash flows. Accordingly, these financial statements are not designed for those who are not informed about such matters. The shareholders2/ have elected to treat the company as a small business corporation for income tax purposes as provided in the Internal Revenue Code and the applicable state statutes. As such, the corporation income or loss and credits are passed through to the shareholders and combined with their personal income and deductions to determine taxable income on their individual returns. In issuing such a written warning regarding the compilation statement he had prepared for Petitioner, Ehrlich was acting in accordance with the standards of acceptable accounting practice prescribed by the American Institute of Certified Public Accountants. Kinney System of Florida, Inc. (hereinafter referred to as "Kinney"), Meyers Parking System, Inc. and Republic Parking System also timely submitted bids in response to the ITB. Kinney's bid was accompanied by a certified audit statement of its parent corporation, Kinney System Holding Corporation. There was no financial statement, however, reflecting Kinney's individual financial condition. A bid evaluation committee comprised of five members evaluated each of the four bids submitted in response to the ITB. The members of the committee determined that, of the four bids submitted, Petitioner's was the lowest. They were concerned, however, based upon the statements made in Ehrlich's letter, that Petitioner had Ehrlich prepare its financial statement without giving him the opportunity to verify the accuracy of the representations it had made to him regarding its financial condition. Because of these concerns, they eliminated Petitioner's bid from consideration, notwithstanding that it was the lowest responsive bid submitted by a qualified bidder, and recommended that the contract be awarded to Kinney, whom they determined to be the next lowest qualified and responsive bidder.3/ The committee members' decision was announced in a letter dated January 13, 1992, the body of which read as follows: Based on the proposed net income distribution, references, background and financial condition, the Parking Lot Management Bid Selection Committee recommends award of the annual parking lot management contract to Kinney Systems [sic] of Florida, Inc. Failure to file a protest within the time prescribed in Section 120.53(5), Florida Statutes, shall constitute a waiver of proceedings under Chapter 120, Florida Statutes. Protests not filed within the prescribed time limit will not be considered. To comply with this statute, a written notice of intent to protest must be filed with the Administrative Services Director named in the bid invitation within 72 hours after receipt of this notice. Within ten days after a notice of intent to protest is filed, a formal written notice of protest must be filed with the Administrative Services Director. A copy of this letter was mailed to Petitioner. Petitioner subsequently protested the committee's recommendation in accordance with the procedures set forth in the letter.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Health and Rehabilitative Services enter a final order sustaining Petitioner's protest and awarding Petitioner the contract advertised in the ITB. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 26th day of March, 1992. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of March, 1992.
The Issue Did the University receive Merit's qualification data during the "bidding period," or failing same, was the time and manner in which it was received such a material variance as to render it nonwaiveable and nonresponsive? Were the data provided by Merit responsive to the ITB? Did the University use the proper quantities for Task 150, Disposal in Landfill, in the third iteration (analysis)?
Findings Of Fact On December 17, 1990, Respondent University, Physical Plant Division, mailed ITB No. P91S-79YC for a yearly contract for asbestos abatement. The ITB was for on-call, small-job asbestos abatement projects with Respondent. As with previous such annual contracts, the idea was to have an open-end contract with a contractor on call as-needed for projects that fit within a specific budget limitation, $15,000. The number of jobs and exact amount of asbestos abatement are indeterminate at the time of entering into the contract. Section 00100, paragraph 6, Qualifications of Bidders (page 00100-2 of the ITB) states: This bid will be awarded only to a respon- sible bidder, qualified by experience and in a financial position to perform the work speci- fied. The bidder shall submit during the bidding period the following evidence of eligibility: Experience record showing bidder's training and experience in similar work. Experience that the bidder is qualified for licensing under Florida Statute 455.302. (Emphasis supplied) Section 00100, paragraph 9, Award or Rejection of Bids (page 00100-2 of the ITB) states: The Contract, if awarded, will be to the responsible bidder who has proposed the lowest Contract Sum, according to the evaluation criteria described in Section 00311, subject to the Owner's right to reject any or all bids and waive informality and irregularity in the bids and in the bidding. General Condition 9, Awards, states: As the best interest of the University of Florida may require, the right is reserved to make award(s) by individual item, group of items, all or none, or a combination thereof; to reject any and all bids or waive any minor irregularity or technicality in bids received. When it is determined there is competition to the lowest responsive bidder, then other bids may not be evaluated. Bidders are cautioned to make no assumptions unless their bids has been evaluated as being responsive. Section 00311, Bid Evaluation, states: Contractor's bids will be evaluated by the Physical Plant Division Representative (PPDR). The proposals will be evaluated in a three-step process. Step one will consist of the verification that all mandatory requirements delineated in the Bid document have been met i.e., met the bid opening date, answered all inquiries in Proposal Forms, and that All Items Are Filled Out in the unit Price Proposal Form. All bids meeting the criteria of step one will then be subject to step two - Contractor Evaluation. Bids which do not meet the requirement of step one will be rejected and not be considered for step two or three. Step two will be an analysis of the Contractor's ability to perform work for the University of Florida. Each of the following items will be rated on a scale of 0-20. Zero would be unsatisfactory while 20 would be outstanding. Professional qualifications, licenses, and proper insurance coverage required. Ability of Contractors to respond in a timely manner. Include information regarding communication capabilities between office and staff, between staff, and between PPDR and the bidder (e.g. pagers, cellular phones, etc.). Experience and ability of all staff proposed for the project teams and the apparent ability of the applicant as it related to pro- ject requirements. Past performance on University of Florida projects. If no past experience is available, an average rating of 10 will be assigned. Any Contractor who receives 0 on Item 2 (Ability to respond in a timely manner) or a total score under 40 points will not be con- sidered for step three. Step three will consist of evaluating each bidder's unit prices. Three "typical" standard jobs have been developed. Each task identified on the bid form is used at least once in these standard jobs. The unit price of each bidder will be multiplied by the quantity on the work sheet for each standard job. The sum of each job will then be multi- plied by the factor indicated below. The lowest aggregate total will be considered the low bidder. The standard jobs are: Standard Job A - Remove asbestos from a boiler room using the Isolated Work Area. Special Job Conditions Multiplier will be used on a portion of this job. The job has a weighted factor of 50%. Standard Job B - Remove asbestos from various pipes and valves in a utility room using the Glove Bag Method. This job was a weighted factor of 30%. Standard Job C - Remove asbestos from an office area ceiling using the Isolated Work Area. This job has a weighted factor of 20%. Section 00700, Contract Documents (page 00700-1 of the ITB) states: The Contract Documents consist of the Purchase Order, the Drawings, the Specifications, all Addenda issued prior to issued after execution of the Contract, and the University of Florida Invitation to Bid. The clear language of the ITB shows that the evaluation of the ITB was intended to be a three-step sequential procedure. If Respondent's evaluation did not determine a bidder to be qualified at step one, it would not avail that bidder to be qualified as to step two, and if not qualified as to steps one and two, the bidder could not prevail just by being in compliance with step three. All bidders were passed by Respondent for step two to be considered for step three. Petitioner has challenged whether or not Respondent has appropriately evaluated and passed Merit (the apparent low bidder) as "responsive" at step two. On the bid opening date for the ITB, the sealed envelope containing Merit's bid (prices, etc.) in response to the ITB did not contain the information required by Section 00100, paragraph 6.B. (page 00100-2) of the ITB. The only written evidence of eligibility reviewed by Respondent with respect to Merit is the document known as the "Black Book." (Respondent's Exhibit 1) Merit's Black Book was in the possession of Respondent prior to the issuance of the present ITB, remained in its possession during the entire bid evaluation process for the present ITB, and was never amended after the bid opening. Respondent's Physical Plant Division employee, Remus E. Acosta, found it in or on his desk on the same day the present ITB was opened, January 10, 1991, before he began to evaluate the bids and utilized it in evaluating/passing Merit as a responsive bidder under step two. The Black Book was initially received by Respondent in September 1990. It contains qualifying data of Merit for asbestos abatement and Merit's certified Florida asbestos contractor's license dated March 8, 1989, plus many other materials concerning Merit's past performance and current licensing of Merit and its employees. The Black Book was submitted in connection with a prior asbestos abatement job undertaken by Merit for Respondent, was generic with regard to many types of bids/contracts let by the Respondent including asbestos abatement, and does not bear any markings which identify it as connected with the present ITB. The Black Book bears two stamped dates. The date of September 15, 1990 stamped on the Black Book signifies that as of that date, Merit needed to revise the Book to meet Respondent's standards for qualification on the prior bid. The date of September 28, 1990 stamped on the Black Book signifies that as of that date Merit had met the Respondent's standards or qualifications for the prior bid. The September 28, 1990 stamp on the front of the Black Book by Environmental Science and Engineering, Inc. (ESE), a consultant to Respondent on the prior bid, also indicates that Merit was an approved asbestos contract vendor on that date. Like all other licenses, Merit's license is valid until revoked. On January 10, 1991, Merit was working on existing asbestos abatement jobs for Respondent, monitored by State of Florida licensing agencies. Respondent works with these agencies on nearly a daily basis and has never been notified that Merit's licenses from them were in question. On January 10, 1991 Respondent reasonably assumed, on the basis of the Black Book, that Merit continued to be licensed. There is no evidence in this record that Merit's licenses ever have been revoked. Mr. Acosta did not "go behind" the contents of Merit's Black Book to verify that each item contained therein was true and accurate as of January 10, 1991. Respondent did not verify the contents of any other bidder's qualifications, either. The ITB does not require that Respondent "go behind" or verify facially acceptable qualifications submitted by a bidder. The ITB does permit Respondent to consider a bidder's past performance with Respondent. If a bidder is not known to Respondent or Respondent is unaware of a bidder's qualifications, paragraph 6.B. of the ITB would allow Respondent to make further inquiry as permitted by paragraph 4 (page 00100-1) which is merely permissive and provides as follows: 4. PROOF OF COMPETENCY OF BIDDER A bidder may be required to furnish evidence satisfactory to the owner that he has suffi- cient means and experience in the types of work called for to assure completion of the Contract in a satisfactory manner. (Emphasis supplied) On the basis of the Black Book, Mr. Acosta evaluated Merit as a responsive bidder and passed Merit for step two of the evaluation process. Had the same information as that contained in Merit's Black Book been submitted simultaneously with Merit's sealed bid on January 10, 1991, Respondent would have followed exactly the same procedure as was actually applied by Mr. Acosta when he found the Black Book in his office that same day. In either situation, Respondent would have presumed the Black Book to be still true and accurate absent some red flag of information that it was not still true and accurate and would have considered its contents to be complete and responsive for purposes of step two. By using the Black Book in his evaluation, Mr. Acosta determined to his satisfaction that Respondent had received Merit's step two qualifications contained in the Black Book within the "bidding period" as required by the ITB. Mr. Acosta and several other witnesses interpreted the term "bidding period," as contained in ITB paragraph 6, Qualifications of Bidders, to encompass the period of time from the date of mailing or advertising the ITB through the date a purchase order is finally issued by Respondent. However, the term "bidding period" as used in paragraph 6 of the present ITB has never been defined by a duly promulgated rule of Respondent University. The ITB itself also does not specifically define "bidding period." Several witnesses acknowledged that "bidding period" as used in paragraph 6 is not normal terminology used by Respondent in its competitive bidding process, but was a term selected by an outside consultant who drafted the present ITB for Respondent without any clear explanation of its meaning and without any explanation that the term "bidding period" was being introduced to vary the standard assumption that sealed bids must be complete as of the date scheduled for their opening and the equally common assumption that the "finish line" for proving-up a bidder's qualifications is the date that sealed bids are opened, and without any explanation as to how such an extended definition as understood by Mr. Acosta could be consistent or compatible with the three step evaluation process specifically contained in the ITB. Although the instant ITB does not define the term, "bidding period," it does contain the following two "boiler plate" paragraphs which discuss the "bid period," a term roughly analogous to "bidding period" and a term which apparently is standard in Respondent's ITBs: 8. BID PERIOD No bidder may withdraw his bid for a period of 30 calendar days after the date set for opening thereof, and bids shall be subject to acceptance by the Owner during this period. 13. DEPOSIT E. Forfeiture of Deposit: If the selected Bidder withdraws his Bid within 30 days after closing date for the receipt of Bids or within such period as the time of acceptance may be extended by the Owner; or if the Bidder fails to withdraw his bid and refuses to provide the documentation required for Notice of Award, Bidder will forfeit Bid deposit and waive any right to make claim thereto. Historically, Respondent has permitted contractors to submit clarifying information, financial information, work load information, and scheduling information until a purchase order is issued but has not permitted a bidder to supplement or amend the prices contained in its bid. Respondent considers an attempt to change a price to be a material alteration or amendment of a bid but historically has viewed all other information as merely clarifying or supplemental and not as a material amendment. There are prior instances in which a bidder has submitted a bid which did not include certain technical data otherwise required to evaluate the bid, and where the Respondent already was in possession of such data, the bid was evaluated on the data already in Respondent's possession. Herein, Respondent University was familiar with Merit's qualifications and performance because Merit was already a vendor on a similar open-end asbestos contract for the past two years and had completed work on specific jobs. Each time a contractor under an open-end asbestos contract gets a job from Respondent, Respondent requires that the contractor update his qualifications only to the extent that his previous submittals would be inaccurate or incomplete. Merit's Black Book contained qualifying data for asbestos abatement and its certified asbestos contractor's license showing Merit to be a licensed asbestos contractor in the state of Florida. It was received and approved by Respondent's consultant on such a job in September 1990, and Respondent was thereafter continuously aware that Merit's license extended past the bid opening date for the instant ITB. Based on this information, Respondent has effectively treated Merit's Black Book herein as a qualification package or pre-job submittal, even though the Respondent's usual practice and this specific ITB did not require pre-qualification of contractors for the new annual ITB. According to Remus Acosta, he treated Merit's prior submittal of qualifying data in exactly the same way as those other bidders' submittals received on January 10, 1991 when he evaluated the January 10, 1991 bids. Because all the required information for the step two evaluation was already in the possession of Respondent before Mr. Acosta began his evaluation of all the bids and because Petitioner did not demonstrate how any bidder was prejudiced by Respondent's relying on Merit's Black Book already in Respondent's possession prior to the date it was due (bid opening day) or how Merit received any advantage from submitting that part of its bid package early, Merit's failure to simultaneously submit the Black Book with Merit's sealed bid on January 10, 1991 constituted a minor technicality. Under the circumstances of this case, Mr. Acosta's action of waiving simultaneous filing of qualifications for a bidder who had previously filed them constituted an acceptable waiver by Respondent of an insubstantial or immaterial variance or irregularity. Section 00100 paragraph 9 specifically reserved to Respondent the "right to waive informality and irregularity in the bids and bidding." Evaluation Process (The Three Iterations) The ITB initially required all bidders to bid on different components of three types of asbestos abatement projects which Respondent's prior experience had demonstrated would be typical of those projects yet to be encountered during the new contract period. The ITB set forth that the "Standard Jobs," designated as "A," "B," and "C," were weighted 50, 30, and 20%, respectively, based on the Respondent's experience with the spread of such similar or typical jobs. The ITB did not set forth or articulate the quantity criteria for the standard jobs, including but not limited to the disposal quantity. Bidders were not required to price based on any set quantities. They were just to price standard elements to make up the jobs. Calculation of quantities based on the three standard jobs was for step three evaluation purposes. Remus Acosta did the initial step three evaluation, taking the component costs provided by each bidder on January 10, 1991 and tabulating the total costs anticipated for each job. After adjusting the totals for weighting, he determined a single total bid price by each bidder. That tabulation listed Merit as low bidder. Petitioner filed its notice of protest on January 16, 1991. On January 25, 1991, Petitioner filed its formal written protest. It was then determined that Mr. Acosta's total costs calculated for each bidder in the January 14, 1991 posting were in error. Thereafter, Respondent attempted another tabulation of bid results, correcting the mathematical errors of the first tabulation. The corrections were entered into the computer spread sheet and rerun as the "first iteration." As a result of that calculation, Merit was again listed as low bidder. There was also a "second iteration" done for all bidders which was posted on February 7, 1991. The second iteration and the job sample therefor were not prepared by Mr. Acosta, but was prepared at his request by Kevin Gara, an Industrial Hygiene and Asbestos Program Manager for Respondent's Environmental Health and Safety Division. Mr. Gara was highly qualified by education, training, and experience to perform the tasks assigned him by Mr. Acosta, but Mr. Acosta had given Mr. Gara a tally sheet that had an incorrect description that included both mobilization and decontamination (decon) functions as one unit. Therefore, the tally sheet given to Mr. Gara did not accommodate the format of the present ITB bid form. As a result of that "second iteration," Merit remained the low bidder. Petitioner contended that the second iteration was flawed and contained errors because of mislabelling and transcription problems and that if the second iteration had been done correctly, Petitioner's, not Merit's, would have been the lowest bid. Respondent did not necessarily agree with that representation, but the parties to the protest concurred that the second iteration was so significantly flawed that a "third iteration" was required. Respondent went on to conduct a third iteration of the bid tabulation as it applied only to Merit and Petitioner. The third iteration was dated February 27, 1991. There were no changes to the ITB specifications as the Respondent went through the three iterations. The third iteration was put together by Brian DuChene, a staff engineer for Law Engineering, one of Respondent's outside consultants. Mr. DuChene works directly under the supervision of a qualifying agent of that company who is a professional engineer and a Florida licensed asbestos consultant. The third time, the format matched the bid form but three new job samples were created based on actual jobs Mr. DuChene had previously overseen or supervised for Respondent. Mr. DuChene's goal in creating the third set of samples to conform to the A, B, C scenarios set out in the original ITB was to effectively answer all questions and problems either posed by the Petitioner/protestant or discovered by Respondent in the course of the first two iterations. He reviewed 70 to 80 prior actual projects to develop as objective as possible a scenario that met the description of the ITB and contract documents for the A, B, and C jobs based on Law Engineering's preliminary cost estimates for the unit quantities from Respondent's similar completed asbestos abatement jobs. Although at least one of Mr. DuChene's preliminary cost estimates came from a job completed by Merit under the prior contract, he did not use any former contractor's actual proposal or any bidder's pricing. This eliminated any skewing in favor of any contractor. Essentially, all Mr. DuChene did in the third iteration was to calculate effectively realistic quantities for situations devised to reasonably fit the A, B, and C scenarios already set forth in the ITB. He also applied the weighting factor already set out in the ITB. His situation methodology and his evaluation/tabulation on behalf of Respondent resulted in Merit's still having the lowest total cost and thus being the lowest bidder as between Merit and Petitioner on the third iteration. Gerald W. Clauss, Petitioner's project administrator, also calculated what the quantities of materials removed from each job would be. He based his calculations on disposal quantities from Petitioner's own limited prior experience and used a method of assessing disposal quantities that did not account for much more than absolute volume of disposal amounts. If Mr. Clauss' estimate as to quantity in cubic yards of asbestos, waste plastic, and other refuse is used, Petitioner's total cost as set forth in the third iteration would be lower than Merit's. Upon Mr. DuChene's tabulation of the third iteration, Merit still prevailed as lowest bidder due to Respondent's applying its calculations to each bidder's respective unit prices ($75 bid by Petitioner and $10 bid by Merit). Respondent established that its calculations in the third iteration based on wide experience and scenarios conforming to the present ITB represent a more practical approach to calculating disposal amounts than do the calculations of Petitioner. Petitioner attempted to show that Mr. DuChene used the wrong quantities in item 150, disposal in landfill, especially in Standard Job A. Since Petitioner's disposal in landfill cost is $75.00 per cubic yard and Merit's is $10.00 per cubic yard, by lowering the disposal quantity in Standard Job A to numbers of Petitioner's choosing, Petitioner caused its bid to become lower than Merit's bid. Although Mr. Clauss' disposal in landfill quantities are mathematically correct for the actual asbestos removal, they do not include the large quantities of plastic required to seal the work area or anticipate a reasonable error factor based on the uncomfortable and hazardous conditions under which this type of contract must be performed. Mr. DuChene's disposal in landfill quantities are more realistic because they include these items. Although every contractor has a different way of establishing the disposal quantity and there is no right number because estimating disposal quantities can never be specifically quantified with no dispute, the greater weight of the credible expert testimony established that Mr. DuChene's methodology and calculations on the third iteration comply with the ITB and further establish that his method is one rapidly gaining favor in the industry due to its accuracy and fairness. Respondent's calculations were considered unreasonable by Petitioner's expert, Mr. Langston. However, each of the experts' calculations, including Mr. Langston's, were significantly higher than those of Mr. Clauss for all disposal quantities. Using Mr. Langston's calculations, Merit's weighted total bid would be higher than Petitioner's; however, Mr. Langston's calculations are mathematically flawed and his assumptions of disposal amounts are not as credible in light of all of the testimony than are those of Mr. DuChene for Respondent. It is significant that even Mr. Langston did not concur with Mr. Clauss' assessment of disposal quantity and Mr. Browning, based on his extensive experience, developed disposal quantities very close to Mr. DuChene's for two of the scenarios, Standard Jobs A and C. Respondent's methodology and its calculations for bid evaluation as contained in the third iteration are reasonable and do not go outside the ITB.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the University of Florida enter a Final Order dismissing Blackwell's protest and ratifying award of ITB P91S-79YC to Merit. RECOMMENDED this 11th day of October, 1991, at Tallahassee, Florida. ELLA JANE P. DAVIS, 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 11th day of October, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-3454BID The following constitute specific rulings pursuant to Section 120.59(2) F.S. upon the parties' respective proposed findings of fact (PFOF): Petitioner's PFOF: 1-7 Accepted. 8 Accepted to the degree utilized, the remainder is subordinate. 9-10 Accepted. Rejected as legal argument, as unproven, and as subordinate, but subject matter is covered in RO. Accepted. 13-14 Accepted but subordinate. This expert opinion was neither accurate or persuasive nor unilaterally dispositive of any material issue. Covered in RO. Accepted. The first sentence is accepted. The second is not proven as to all three jobs, but whether it was one or three, the proposal is subordinate to the facts as found and not determinative or dispositive of any material issue. Accepted. Rejected as stated as contrary to the greater weight of the evidence. The appropriateness and reasonableness of the selection was at issue and is covered in the RO. 19(i-vi) Rejected as legal argument, as selective use of verbatim, unreconciled testimony, and as stated, these proposals are contrary to the greater weight of the credible and probative evidence. 20-24 Accepted. Rejected as legal argument or a conclusion of law but covered in the RO. Accepted. 27-29 Rejected because not proven as stated. Covered in the RO that Respondent accepted as current the Black Book's contents without further formal verification and covered in the RO as to when and how Merit's evidence of eligibility was received and considered and what was the duration and nature of the evaluation process. 30-31 Accepted. 32-34 Rejected as legal argument and subordinate and cumulative to the facts as found. That the Black Book was not in Merit's timely filed sealed bid envelope is covered in the RO. 35 Sentences 1 and 2 are rejected as mere legal argument. Sentence 3 is accepted. 36-37 Accepted but edited to cull mere legal argument. Respondent's PFOF: 1-13, 16-17, 19, 22, 26, 30-31, 38 Accepted except to the degree they are unnecessary or subordinate or cumulative to the facts as found. 14-15, 18 Accepted in part and rejected in part as legal argument or mere recitation of unreconciled testimony. Cumulative or unnecessary material has also been eliminated. The subject matter is covered in the RO. 20-21 Rejected because it is legal argument or a conclusion of law but covered in the RO. 23-25, 27-29, 32-37, 39-41 Accepted but not utilized in toto to the degree they are mere recitation of unreconciled testimony, unnecessary or subordinate, or cumulative to the facts as found. Covered in the RO. COPIES FURNISHED: Joseph T. Barron Associate General Counsel Barbara C. Wingo Deputy General Counsel University of Florida 207 Tigert Hall Gainesville, FL 32611 Marshall Cassedy, Esquire McFarlain Law Firm P. O. Box 2174 Tallahassee, FL 32301 Pam Bernard, General Counsel University of Florida 207 Tigert Hall Gainesville, FL 32611
The Issue The central issue in this case is whether the bid for the Department of Health and Rehabilitative Services Lease No. 590:1871 to provide office space in Dade County, Florida, should be awarded to either Petitioner or Intervenor.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact: The Petitioner, Robert Litowitz (hereinafter "Litowitz"), in response to an invitation to bid advertised by the Department of Health and Rehabilitative Services (hereinafter "HRS"), timely filed a bid submittal form offering to lease real property located at 11401 SW 40th Street (also known as Bird Road), Miami, Florida. This lease was to be for a five-year term with two one-year renewal options. The net square footage for the lease required by HRS was 14,781 + 3 percent with the geographical boundary designated by the invitation to bid being described as follows: All bid should be for existing office space located within the following boundaries: On the North, S.W., 48th Street. On the South, S. W., 88th Street. On the East, Palmetto Expressway, and on the West, S.W., 117th Street. This description contained an error in that the western boundary line should have been 117th Avenue not 117th Street. This minor discrepancy was noted at both of two pre-bid conferences conducted by HRS. The Intervenor, James C. Colross (hereinafter "Colross"), also timely filed a bid submittal form offering to lease real property described as Building "B," 9495 Sunset Drive (Southwest 72nd Street), Miami, Florida. Prior to the bid opening date, February 17, 1987, employees of HRS conducted two pre-bid conferences. At these conferences the bid package was reviewed and explained to all potential bidders present. Litowitz attended the pre-bid conference held the last week in January 1987. At this pre-bid conference Litowitz received the bid package and advised employees of HRS that he would be submitting property located on Bird Road for consideration for lease No. 590:1871. Linda Treml was the HRS employee who served as the contact person for the bid for Lease No. 590:1871. Ms. Treml conducted the pre-bid conferences and answered questions from potential bidders regarding the bid submittal forms. Several months earlier, perhaps during the summer 1986, Litowitz had met with Linda Treml regarding the possible lease of the Bird Road site, Ms. Treml had advised Litowitz that, at that time, HRS was not looking for space but that Litowitz would be added to their mailing list for future bid opportunities. Ms. Treml toured the Bird Road property with Litowitz as a courtesy visit for his inquiry. The bid submittal form for Lease No. 590:1871 required the proposed space be in an existing building. "Existing" was defined to specify the entire space to be dry and capable of being physically measured to determine net rentable square footage. Both the Colross and the Litowitz properties met this definition for an existing building at the time of the bid submittals. The bid submittal form for Lease No. 590:1871 required a minimum of 90 parking spaces to include a minimum of 80 full size spaces and 4 spaces meeting the Standards For Special Facilities For Physically Disabled found in Chapter 130-1, Florida Administrative Code. The required parking spaces did not have to be reserved for the exclusive use of HRS. Colross offered 62 exclusive spaces on site with 50 additional exclusive parking spaces located one block from the proposed facility. The Colross site plan for Building B (the bid property) established over 90 non-exclusive parking spaces available on site. The Litowitz property also had 90-plus non-exclusive parking spaces on site. HRS requested a clarification for the 50 exclusive spaces offered off-site by Colross. The verbal clarification was reduced to writing to confirm such spaces, if needed, would be at no cost to HRS. This written confirmation was not issued until March 31, 1987. HRS established a bid evaluation team to review the bids submitted for Lease No. 590:1871. This team, comprised of Janet Robinson, Dorea Sowinski, and Grace 0abolish, visited both the Litowitz and Colross properties. Subsequent to the site tours, they met in a conference room at Janet Robinson's office to discuss the bid evaluation process. This team was to make a recommendation as to which bid was the lowest and best. The recommendation was to be made based upon the evaluation criteria set forth in the bid submittal form. No other criteria were to be employed by the evaluation team. HRS has no guidelines which specified how each team member is to apply the evaluation criteria. The team recommendation would then be reviewed by George Smith and his superiors. Linda Treml advised the evaluation team not to consider the Litowitz property because it was outside the geographical boundary established by the invitation to-bid. The Litowitz property located on Bird Road is, in fact, outside of the advertised boundaries. The bid advertisement required the property to be considered for Lease No. 590:1871 to be within the stated geographical area. HRS did not, by act or omission, encourage Litowitz to prepare and submit a bid for a property known to be outside the defined boundary. HRS did not advise Litowitz that a property outside of the defined boundary would be disqualified. The bid evaluation criteria assigned a weighing value of 10 percent to the proximity of the offered space in the central or preferred area of the map boundaries. Litowitz mistakenly concluded that even though his property was not within the boundaries that he would lose only the 10 percent weighing factor when his property would be evaluated. HRS did not, by act or omission, affirm this erroneous interpretation. Because the Litowitz property was not within the defined geographical boundary, HRS disqualified the Litowitz bid. Accordingly, the Colross bid was the only bid left for consideration and was selected for Lease No. 590:1871. The interested parties were notified of this selection on or about March 19, 1987. The Colross bid included a higher rental fee than the Litowitz bid. HRS rejected a third bid for Lease No. 590:1871 submitted by Brookhill Capital Resources (hereinafter "Brookhill") since it was missing certain documents which had to be submitted by the time of the bid opening. The Brookhill bid included a lower rental fee than the Litowitz bid. The Brookhill property was within the advertised boundary. HRS selected the Colross property and deemed it the lowest and best bid since the Litowitz and Brookhill properties had to be disqualified. Members of the bid evaluation team preferred the Colross property for Lease No. 590:1871. HRS did not waive the boundary requirement for Lease No. 590:1871. Employees of HRS completed a bid synopsis which listed data on all three bidders for lease no. 590:1871 even though two of the bidders, Litowitz and Brookhill, had been disqualified, HRS reserved the right to reject any and all bids when such rejection would be in the interest of the State of Florida. Janet Robinson as the managing administrator of the disability determination office set the geographical boundaries for the invitation to bid. The boundaries were established in consideration of the needs and desires of the employees of the disability determination office.
The Issue The issue in the case is whether the Petitioner is entitled to credit for answers, which the Respondent scored as incorrect, to three questions on the February 2003 General Contractor Construction Examination.
Findings Of Fact The Petitioner took the General Contractor Construction Examination on February 11, 2003. After being notified that he did not pass the test, the Petitioner requested a review of the test and his responses. Following the informal review of his examination answers, the Respondent awarded no further credit and the Petitioner requested an administrative hearing. The Petitioner initially challenged the scoring of his answers to 12 examination questions. The challenged examination questions are identified as Business and Finance AM questions 6, 12, 33, and 40, Business and Finance PM questions 2 and 25, and General Contract Administration questions 21, 22, 30, 34, 48, and 59. At the hearing, the Petitioner withdrew his challenges to Business and Finance AM questions 6, 12, and 33, and maintained his challenge to Business and Finance AM question 40. Business and Finance AM question 40 requires an examination candidate to identify the proper response, according to a specified reference source, to the hypothetical discovery of hidden asbestos revealed during a demolition process. The correct answer to Business and Finance AM question 40 requires a contractor to stop working and notify the owner and architect in writing. The answer is directly referenced in the text of "General Conditions of Contract," a book that the Petitioner was permitted to use during the examination. The Petitioner's answer to Business and Finance AM question 40 was to stop work and notify the owner by telephone. The evidence fails to establish that the Petitioner's response to Business and Finance AM question 40 is correct or that the Petitioner is otherwise entitled to credit for his answer. At the hearing, the Petitioner withdrew his challenges to Business and Finance PM questions 2 and 25. The Petitioner also withdrew his challenges to General Contract Administration questions 30, 34, 48, and 59, and maintained his challenge to General Contract Administration questions 21 and 22. General Contract Administration question 21 requires an examination candidate to calculate the workday upon which concrete footers could be poured following completion and inspection of specified preparatory work. According to the question, no inspection or other work occurs on Saturdays or Sundays and an inspection would occur on the workday after the footing preparation was completed. The question provided that the specified preparatory work would begin on a Monday and would take seven days to complete. An inspection would occur on the eighth workday. The correct answer to General Contract Administration question 21 was that the footers could be poured on the ninth workday. The Petitioner's answer to General Contract Administration question 21 was that the footers could be poured on the eleventh day. The Petitioner incorrectly included the weekend in his calculation of workdays. The evidence fails to establish that the Petitioner's response to General Contract Administration question 21 is correct or that the Petitioner is otherwise entitled to credit for his answer. General Contract Administration question 22 requires an examination candidate to calculate the total linear feet of rebar needed to reinforce a footer of specified length and construction. The calculation of the total linear feet of rebar as performed at the hearing by the Respondent's witness, William H. Palm (qualified as an expert in General Contracting), is accepted as correct. Based on the specifications given in the question, Mr. Palm calculated that there would be eight 20-foot bars with the eight bars overlapping each other by 12.5 inches at each of seven overlaps. Multiplying the seven overlaps by 12.5 inches results in 7.29 feet of total overlap. Adding the total overlapping segments to the 160-foot total and multiplying the results by the four continuous bars results in an answer to General Contract Administration question 22 of 669.16 feet. The closest possible answer from the multiple choices listed in the examination question is 670 linear feet. The Petitioner's answer to General Contract Administration question 22 was that 666 linear feet of rebar would be required. The evidence fails to establish that the Petitioner's response to General Contract Administration question 22 is correct or that the Petitioner is otherwise entitled to credit for his answer. The Petitioner also challenges as inappropriate and unfair, the use of "general trade knowledge" as a reference to correct answers. The evidence presented by the Petitioner fails to establish that the use of "general trade knowledge" is inappropriate or unfair. General trade knowledge is general or common knowledge among professionals in the trade. The list of appropriate references available to all examination candidates states that some questions will "be based on field experience and knowledge of trade practices."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent enter a Final Order dismissing the Petitioner's challenge to the grading of the Petitioner's responses to the February 2003 General Contractor Construction Examination. DONE AND ENTERED this 12th day of December, 2003, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of December, 2003. COPIES FURNISHED: Carl Malavenda 15811 Gulf Boulevard Redington Beach, Florida 33703-1733 Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202 Nancy Campiglia, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Tim Vaccaro, Director Construction Industry Licensing Board Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
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
Findings Of Fact On or about January 26, 1990, the Respondent sought competitive bids through Invitation to Bid Number 590:2123 for the lease of certain office space in Plant City, Florida. The bid opening occurred on March 1, 1990, and Intervenor was determined to have submitted the lowest responsive bid. In addition to Intervenor's bid, bids were received from Petitioner and Walden Investment Company, which is not a party in this case. On or about May 8, 1990, the Respondent notified all bidders of its intent to award this lease to Intervenor, and on May 10, 1990, the Petitioner filed its notice of protest concerning this award claiming that Intervenor's bid was not responsive to the parking requirements in the Invitation to Bid. Section 15 of the Invitation to Bid requires that a minimum of 65 parking spaces be provided, and that a minimum of 15 of these spaces must be full size and a minimum of 5 must meet ANSI standards for handicapped parking spaces. No definition or specification for full size parking spaces is provided in the Invitation to Bid. Petitioner did not establish that there is a commonly accepted standard for full size parking spaces in the construction or development industry, or that the Respondent uniformly requires all full size parking spaces to be of certain dimensions. The Intervenor certified in its bid that it would meet the parking space requirement of the Invitation to Bid. The Respondent does not require detailed site plans which would depict actual dimensions for each parking space to be submitted with each bid. Rather, Section 10(d) of the Invitation to Bid requires only a line drawing "drawn roughly to scale", and specifies that final site layout will be a "joint effort between the department and the lessor so as to best meet the needs of the department". The Intervenor did submit a rough line drawing with its bid which depicts 71 parking spaces. The Respondent routinely accepts a bidder's certification that it will meet the parking requirements in an Invitation to Bid, and if those requirements ultimately are not met, the Respondent may proceed against the performance bond which the successful bidder is required to post. The Petitioner presented evidence that there is not enough room on Intervenor's site to provide 15 full size parking spaces measuring 10 feet wide by 20 feet long. However, there is nothing in the Invitation to Bid, or in the City of Plant City's Code which requires full size parking spaces of this dimension. Based upon its certification and the inclusion of a rough line drawing showing space for parking in excess of the requirements in the Invitation to Bid on this site,, it is found that Intervenor was responsive to the parking requirements in this Invitation to Bid.
Recommendation Based on the foregoing, it is recommended that the Respondent enter a Final Order dismissing Petitioner's protest and awarding Lease Number 590:2123 to Intervenor. DONE AND ENTERED this 3rd day of August, 1990, in Tallahassee, Leon County, Florida. DONALD D. CONN 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 3rd day of August, 1990. COPIES FURNISHED: Jack Farley, Esquire District 6 Legal Office 4000 West Dr. Martin Luther King, Jr., Blvd. 5th Floor, Room 520 Tampa, FL 33614-9990 Alan Taylor P. O. Box 7077 Winter Haven, FL 33883-7077 Richard C. Langford, Esquire P. O. Box 3706 St. Petersburg, FL 33731-3706 R. S. Power, Agency Clerk 1323 Winewood Blvd. Building One, Room 407 Tallahassee, FL 32399-0700 John Miller, General Counsel 1323 Winewood Blvd. Tallahassee, FL 32399-0700
The Issue Petitioner and Lyell Hintz protest the Department's intent to award the bid for Lease No. 550-0209 to Southeastern Investment Properties, Inc. Issues derived from the pleadings, the joint prehearing stipulation and the evidence and argument at hearing are: Whether Petitioner has standing to protest the bid award; Whether Petitioner and Lyell Hintz have waived the right to contest evaluation criteria; If not, whether those criteria are valid; Whether the Respondent has properly applied the criteria to the bid proposals; Whether Southeastern's bid was nonresponsive; Whether Southeastern changed its bid after opening; Whether Petitioner's bid was defective for failure to include a waiver of existing lease; Whether the bid should be awarded to Lyell Hintz or Petitioner; and Whether all bids should be rejected and the lease re-bid.
Findings Of Fact The Bid Solicitation On or about January 31, 1991, the Florida Department of Transportation (DOT) advertised its request for proposals (RFP) for a full service lease for its District Five, Operations and Planning Office, Public Transportation Office and Construction Office. The RFP is identified as lease #550:0209. Specifications include net square footage of 13,640 + 3% (13,231 - 14,049), divided into 90% office and 10% storage space, to be available by July 1, 1991, or within 30 days of notice of bid award, whichever occurs last. The space is to be available in a northern section of Orange County designated on a map attached to the RFP, in the Winter Park/Maitland/Orlando area surrounding the intersection of Lee Road and I-4. The following evaluation criteria (award factors) are included in the RFP: The successful bid will be that one determined to be the lowest and best. All bids will be evaluated based on the award factors enumerated below: Rental, using total present value methodology for basic term of lease... (weighting: 15) Conformance of and susceptibility of the design of the space offered to efficient layout and good utilization and to the specific requirements contained in the Invitation to Bid (not to exceed a weight of 10 award factors). (weighting: 10) Provision of the aggregate square footage on a single floor. Proposals will be considered, but fewer points given, which offer the aggregate square footage in not more than two floors. (weighting: 25) The effect of environmental factors, including the physical characteristics of the building and the area surrounding it, on the efficient and economical conduct of Departmental operation planned for the requested space. (not to exceed a weight of 10 award factors) (weighting: 10) Offers providing 100 s.f. of street-level secured storage. (weighting: 10) * * * [deleted criteria given 0 weight and not relevant] Option period rental rate proposed is within projected budgetary restraints of the department. (weighting: 15) Accessibility to an I-4 Interchange. (weighting: 15) total award factors = 100 (Joint Exhibit #1, p. 7 of 10) Paragraph D.1., General Provisions, includes a notice that failure to file a protest within the time prescribed in Section 120.53(5), F.S., constitutes a waiver of proceedings under Chapter 120, F.S. The notice references an attachment which includes the text of Chapter 90-224, Laws of Florida, requiring posting of a bond at the time of formal written protest. Paragraph D.6.A., General Provisions states: Each proposal shall be signed by the owner(s), corporate officers, or legal representatives(s). The corporate, trade, or partnership title must be either stamped or typewritten beside the actual signature(s). If the Bid Submittal is signed by an Agent, written evidence from the owner of record of his/her authority must accompany the proposal. If the agent is to execute the lease, the authority must be supported by a properly executed Power of Attorney. If the Bid Submittal is offered by anyone other than the owner or owner's agent, proof of the bidder's authority to offer the facility, i.e., copy of bidder's Option to Purchase, must accompany the proposal. This option must be valid through the validity date established for bids. If a corporation foreign to the State of Florida is the owner of record, written evidence of authority to conduct business in Florida must accompany the Bid Submittal. If there is an existing lease extending beyond the required availability date for all or any portion of the premises being offered to the agency a release of the applicable lease must accompany the Bid Submittal. (Joint Exhibit #1, p. 8 of 10) Paragraph D.8., General Provisions, provides the Department reserves the right to reject any and all bid proposals, waive any minor informality or technicality in bids, to accept that bid deemed to be the lowest and in the best interest of the state, and if necessary, to reinstate procedures for soliciting competitive proposals. Paragraphs D.12 and 13, General Provisions, establish a March 4, 1991 bid opening and a February 11, 1991 preproposal conference, respectively. On the RFP/Bid Proposal Submittal form, below the bidder's signature space, there is a list of required attachments and notice that failure to include such, if applicable, "...shall render the proposal nonresponsive and such proposal shall be rejected". (Joint Exhibit #1, p. 10 of 10) The relevant attachments include a map with location of the facility, photograph, floor plan, authorization as agent for bidder, and release of existing leases. The RFP/Bid Proposal Submittal Form was furnished to the DOT by the Department of General Services (DGS). As permitted, DOT made some modifications to the criteria to meet the specific needs of the agency. No protests of the bid solicitation were filed by any party. The Bid Responses Four proposals were timely received at the bid opening deadline, March 4, 1991: Clayton's Realty (Petitioner) submitted two proposals, Lyell Hintz submitted one proposal, and Southeastern Investment Properties, Inc., submitted one proposal. Clayton's bid for its building at 611 Wymore Road, Winter Park ("Clayton Bldg.") offers 13,984 square feet for $1,136,200.00 for the five-year rental period and $1,398,400.00 for the option years. Some of DOT's offices are already in this building. Clayton's bid for its building at 5600 Diplomat Circle, Orlando, ("Promenade Building") offers 14,049 square feet at $965,868.75 for the 5-year rental term, and $1,229,287.50 for the option period. Both of Clayton's buildings offer space on two floors. Lyell Hintz offers 14,049 square feet at 1241 S. Orlando Avenue, Maitland. The five year rental cost is $895,623.75, and the option period rental is $1,123,920.00. All of the space is offered on a single first floor. Southeastern Investment Properties, Inc., offers 14,049 square feet in the Adlee Building at 5151 Adamson Street, Orlando, for $1,009,139.67 for the 5- year rental term and $1,288,012.32 for the option period. Southeastern contends that it is offering 100 square feet of storage space on the first floor and the remainder of space on the second floor. Committee Analysis of the Bids An evaluation committee comprised of four DOT employees met on March 6, and March 12, 1991, to evaluate the bids. Their evaluation included a visit to each site with pre-established questions. The four employees were Nancy Houston, District Five District Director for Planning and Public Transportation; Donna Sovern, Ms. Houston's Administrative Assistant; Jim Hamelin, Resident Engineer in charge of construction in District Five; and Steven J. Nunnery, Office Manager for District Five Construction. The committee had prior experience in the leasing process on only one occasion. In November 1990, this same lease #550:0209 was bid. Lyell Hintz and Southeastern were the bidders. All bids were rejected after it was discovered that Southeastern's bids included typewritten language added by the bidder and in conflict with standard requirements. No protest was filed from that agency decision. In the November bid the committee simply utilized the criteria provided in the DGS packet. Later the Committee learned that criteria could be modified by the individual agency. With this understanding, the Committee changed the criteria for the March 1991 bids to provide that space be offered on no more than two floors, rather than two buildings; that points would be awarded for offers of 100 square feet of street level storage space, rather than all space on the street level; and that accessibility to an I-4 Interchange would be an additional evaluation factor. The committee felt these criteria appropriately addressed agency need to collocate programs and share facilities, to have ground floor storage for heavy samples and equipment, and to provide easy access by field staff and others using I-4 regularly. The committee devised a methodology for awarding points to each bidder in each category described in paragraph 3, above. The methodology is stated in the minutes of the evaluation committee meeting dated March 6, 1991. For item no. 1, the committee awarded 15 points (the highest) to the lowest bid. The percentage of difference between each bid and the lowest bid was multiplied by 15 to determine the point value. Hintz received 15 points; Clayton (Promenade Building) received 14 points; Southeastern received 13 points; and Clayton (Clayton Building) received 12 points. For item no 2, the committee stated it would take into account the design and other factors in the description of this item, including the parking requirement addressed in the invitation to bid. Southeastern received the maximum, 10 points; Hintz received 8 points; and the two Clayton buildings received 6 points each. As part of the November bid process, when the agency initially intended to make the award to Southeastern, Nancy Houston's husband, an architect in private practice, prepared without charge a layout of Southeastern's building to see if Southeastern could meet DOT's needs. At Clayton's and Southeastern's requests, that layout was provided to the bidders, except for Hintz. Since Hintz' building is basically a shell, and he assured DOT he would make the renovations they needed, Ms. Houston did not feel that he needed the floor plan. After the bids were rejected in November, the layout became a public record, available to anyone upon request. However, Ms. Houston opined at hearing that they could not get a good layout that would work for the Hintz building. This contradicts Mr. Hintz' testimony that the suggested floor plan attached to the RFP could easily fit in his building. The floor plan attached to the RFP is not the same floor plan prepared by Ms. Houston's husband for the Southeastern building and the fact that Hintz' building is a shell capable of a vast variety of layouts impeaches Ms. Houston's opinion. Item no. 3 requests aggregate square footage on a single floor, with fewer points for space on two floors. The committee methodology was to give 25 points for space on one floor and "reduction given accordingly" for two floors. (Joint Exhibit #6, attachment A, page 1) Hintz and Southeastern were each granted 25 (maximum) points. Although various committee members testified that two floors should have warranted 1/2 the points, or 13, Clayton's buildings were awarded 16 points each. Southeastern is not proposing to provide all space on one floor, as it is offering storage on the first floor and office space on the second floor. The committee considered this worthy of full points, as all of the office space is on one floor. Item no. 4 is related to environmental factors such as aesthetics of the building and surrounding areas. The committee methodology states that aesthetics of the building and area would be considered along with "...the economical factor relating to the conduct of our everyday activities from and in each space proposed." (Joint Exhibit #6, Attachment A) Southeastern was awarded 10 points (maximum); Clayton's Clayton Building and Promenade Building were awarded 6 and 8 points respectively; and Hintz was awarded 3 points. Item no. 5 relates to provision of 100 square feet of storage on the street level. The committee methodology provides that full ten points will be awarded if this is met; if not, the score would be "adjusted accordingly". Each bid was awarded the full 10 points. The committee members learned that Southeastern was willing to provide street level storage when they made their site visit and inquired. The space was not described in Southeastern's written proposal. Item no. 11 relates to rental cost for the option period. The methodology adopted by the committee for this item is the same as for item no. Hintz, the lowest bidder for the option term, received 15 points; Clayton's Promenade Building received 14 points; Southeastern received 13 points; and the Clayton Building received 12 points. Item no. 12, accessibility to an I-4 Interchange, is worth 15 points maximum. For its methodology the committee devised a formula of granting the closest building a full 15 points. The I-4/Lee Road interchange was selected as the reference hub. The Clayton Building, .2 miles from the interchange, was given 15 points. Southeastern's building .6 miles away, three times as far, was given 1/3 value, 5 points; the Promenade Building, .4 miles away, or twice as far, was given 1/2 full value, or 7.5, rounded to 8 points; and Hintz' building, 2 miles away, or 10 times as far, was given 1.5 points, rounded to 2. The total values thus awarded by the committee were: 86 points to Southeastern; 78 points to Hintz; 77 points to Clayton (Clayton Bldg.); and 76 points to Clayton (Promenade Bldg.). The committee, after meeting on March 6th and making its awards, decided to meet again on March 12th, after obtaining more information on phone service, zoning regulations, crime, and bidder's previous experience in renovations. Although some additional information was obtained and the committee did meet again, it determined that the additional information (not clearly related to any of the seven criteria above) did not warrant changing any of the scores. The committee recommended award of the lease to Southeastern. Southeastern's Bid Allegedly Defective Southeastern's bid is signed by Gilmore E. Daniel, Vice President of Southeastern Investment Properties, Inc., as agent for the owner, Cynwyd Investments, a partnership which operates under about 150 different partnerships. The building in issue is owned by an entity designated "Adlee Building, Cynwyd Investments General Partnership". Attached to Southeastern's bid is a letter on Cynwyd Investments letterhead, dated February 7, 1991, addressed to Mr. Gil Daniel, re: Adlee Building, 5151 Adamson Street, Orlando, Florida, stating: As leasing and managing agent for the above captioned property, you are hereby authorized to negotiate on our behalf with the State of Florida in order to procure the Department of Transportation as a tenant in our building. (Joint Exhibit #5) The letter is signed by Stephen Cravitz, CSM. Although the language of the letter is inartful (the agent was not "negotiating" a lease), the intent is plain on its face that the agent procure a lease. This is sufficient to convey authority for Gil Daniel to act on behalf of the owner. The requirement of the RFP, paragraph 6.A. is met. (see paragraph 5, above) There are several tenants currently occupying space proposed to be leased to DOT under lease no. 550:0209. There are three "agreements" attached to Southeastern's bid proposal for three tenants. Each agreement provides the tenant will move by April 15, 1991 "...contingent upon the landlord being the successful bidder for the State of Florida Department of Transportation lease no. 550:0209, and having an executed lease with the State." (Joint Exhibit #5) The tenants have not moved, but neither has the contingency been satisfied; and when or if it is, the tenants will move. These agreements are sufficient "release" to meet the requirements of RFP paragraph 6.A. The remaining tenant does not have a lease. Clayton's Bid Allegedly Defective Clayton's bids did not include any releases from tenants. There is a tenant currently in part of the space offered in the Clayton Building. There is also a lease agreement dated August 28, 1989, between the Claytons and Canam Steel Corporation describing a lease term of three years and termination date of September 14, 1992. Edward Fielding, Jr. is Director of Operations in the Leasing Department for Charles and Malcolm Clayton. He is well aware of the requirements for state leasing as he and the Claytons have been involved for several years in leasing space to state agencies. Canam Steel Corporation provided a letter in April 26, 1990, stating that it is closing its Orlando operation and requesting that its lease be terminated. It still occupies the space, but Edward Fielding is assured that it wishes to leave, and will do so immediately upon approval by Clayton. The lease and release was not included with the bid packet, as Fielding properly determined that it was no longer binding on the landlord. The Clayton Building bid does not violate the requirement of RFP, Paragraph 6.A. F. Alleged Bias of the Committee in Favor of Southeastern and Improper Award of Points Hintz and Clayton contend that the bid process was thoroughly tainted with a bias in favor of an award to Southeastern. Clayton did not respond to the November bid; Hintz did, and did not protest the earlier process, although he apparently brought to DOT's attention the language added to Southeastern's bid response that led to the rejection of all bids and reinitiation of the process. The committee changed its evaluation criteria when it learned that DGS's form criteria are not binding on the agency. The committee's alterations and addition of the I-4 accessibility requirement were intended to better meet the specific needs of the programs that would be using the space. The changes did not specifically benefit Southeastern; it was neither the closest nor next closest building to the I-4 interchange. For those criteria which could be objectively quantified, such as rental rate and proximity to I-4, the committee attempted in good faith to devise formulae. That the point spread for the I-4 criteria was substantially wider than for rental rates does not invalidate those formulae. For those criteria requiring a subjective analysis, the conformance/design and environmental factors, Petitioner and Hintz failed to prove the committee's point awards were patently wrong or fraudulent. One committee member, James Hamelin, admitted that Clayton should have received 13, rather than 16 points for providing space on more than one floor, but that error, if it indeed was an error, inured to the benefit of Petitioner and made no impact on Hintz, the next highest scorer. None of the floor plans presented by the bidders with their proposals are attached to the exhibits received in evidence, and those floor plans are not part of the record in this proceeding. One committee member, Donna Sovern, admitted that all of the square footage proposed by Southeastern was initially on the second floor. When the site visit was made and the committee discussed the space, Southeastern offered 100 square feet of storage on the first floor. (Transcript, pp 200-201) Because of this, Southeastern was awarded the full 10 points for Item No. 5, requiring 100 square feet of street-level secured storage. Allowing Southeastern to change its bid thus provided an advantage of 10 additional points. Assuming that the change was appropriate, Southeastern should not have also received the full 25 points for Item No. 3, provision of aggregate square footage on a single floor, since the remainder of its space is on the second floor. The award of points in these two items by the committee is inconsistent and erroneous. Page 4 of 10 of the RFP describes the space to be included in the 13,640 square feet to be leased. The description includes storage areas. (Joint Exhibit #1) The bidders were on notice that "aggregate" square footage includes storage space. The total number of points awarded to Southeastern must be reduced by either 10 (the after-the-fact storage space on the first floor) or 9 (the difference between the full 25 points and 16, the points awarded to Clayton for space on two floors). This results in a total of either 76 or 77 points for Southeastern. In either case, Hintz becomes the highest scorer, and Clayton and Southeastern are tied.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: That the agency enter its Final Order awarding lease no. 550:0209 to Lyell Hintz. DONE AND RECOMMENDED this 12th day of June, 1991, 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 12th day of June, 1991. APPENDIX TO RECOMMENDED ORDER The following constitute specific rulings on the findings of fact proposed by the parties: Petitioner's Proposed Findings Adopted in paragraphs 1 and 7. - 5. Adopted in paragraph 11. Adopted in paragraph 20. Adopted in paragraph 31. Adopted in summary in paragraph 18. Rejected as immaterial. and 11. Adopted in part in paragraph 5, otherwise rejected as immaterial. Southeastern's name is typewritten. Rejected as immaterial. Adopted in part in paragraph 31, otherwise rejected as immaterial. and 15. Adopted in part in paragraph 33, otherwise rejected as immaterial. Adopted in paragraphs 17 and 18. Rejected as immaterial and irrelevant. Adopted in paragraph 19. Rejected as immaterial. Adopted in part in paragraphs 20 and 27, otherwise rejected as unnecessary. Rejected as unnecessary. Adopted in substance in paragraphs 21, 26 and 27. Rejected as unnecessary. Adopted in paragraph 37. Adopted in part in paragraph 29, otherwise rejected as irrelevant as points were not awarded or subtracted for the additional factors. Rejected as irrelevant. Lyell Hintz' Proposed Findings Adopted in paragraphs 1 and 2. Adopted in paragraph 11. Adopted in paragraphs 13, 15, 16 and 21. Adopted in paragraph 3. Adopted in paragraphs 17 and 18. Adopted in paragraph 5. Adopted in paragraph 8. Rejected as unnecessary. Adopted in paragraphs 31 and 32. - 11. Rejected as immaterial and contrary to the weight of evidence. The letter attached to the bid was sufficient authority. 12. Rejected as contrary to the weight of evidence. 13. and 14. 15. Adopted Adopted in in paragraph 25. paragraphs 3 and 25. 16. Adopted in paragraph 38. 17. - 21. Adopted in paragraphs 3 and 22. 22. Rejected as argument rather than finding of fact. 23. Rejected as immaterial and unsupported by the evidence. 24. Adopted in paragraph 3. 25. - 34. Adopted in summary in paragraphs 23, 14 and 16. 35. and 36. Adopted in paragraph 38. Adopted in paragraphs 3 and 24. - 50. Rejected as immaterial. According to the evidence these factors did not change the committee's evaluation. 51. - 53. Rejected as immaterial and, as to the DGS requirement, unsupported by the record. Respondent and Southeastern's Proposed Findings Adopted in paragraph 1. Adopted in paragraph 9. Adopted in paragraph 11. Adopted in paragraph 10. Adopted in paragraph 17. Adopted in paragraphs 18 and 19. Adopted in paragraph 3. Adopted in part in paragraph 3, otherwise unnecessary. Adopted in paragraph 23. Rejected as unnecessary. Adopted in paragraph 25. Adopted in paragraph 19. Adopted in paragraph 27. Adopted in paragraph 3. Adopted in paragraph 28. Adopted in paragraph 24. Rejected as contrary to the evidence, specifically the RFP which unambiguously included all storage and office space in the "aggregate." - 19. Rejected as irrelevant or unsupported by the record. Adopted in paragraph 31. Adopted in paragraph 33. Adopted in part in paragraph 34, but the letter requesting its lease be terminated is sufficient release. Adopted in part in paragraph 12. Rejected as unnecessary. COPIES FURNISHED: Marvin L. Beaman, Jr., Esquire 605 North Wymore Road Winter Park, FL 32789 Wings L. Benton, Esquire P. O. Box 5676 Tallahassee, FL 32314-5676 Susan P. Stephens, Esquire Dept. of Transportation 605 Suwannee Street Tallahassee, FL 32399-0450 Kenneth M. Meer, Esquire 423 Country Club Drive Winter Park, FL 32789 Ben G. Watts, Secretary Attn: Eleanor F. Turner, M.S. #58 Dept. of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0458 Thornton J. Williams, General Counsel Dept. of Transportation 562 Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0458
Findings Of Fact As the parties stipulated, DOR "seeks to lease warehouse and office space in the City of Tallahassee in a privately owned building, and issued a request for proposals ('RFP') to seek competitive proposals. Four offerors responded with proposals; three of these were deemed responsive by the Department, and were evaluated by the Department on a variety of weighted evaluation criteria, only one of which was rental rate. . . . The Department proposes to award the lease to the Fregley/Oertel/Skelding Partnership ('F/O/S')." North of Gun Club, South of Springsax By unrecorded warranty deed dated January 2, 1989, Petitioner's Exhibit No. 1, Richard L. Pelham, individually, conveyed to petitioner Equity Resources, Inc., property fronting on Springhill Road in Tallahassee, Florida, on which a warehouse stands. The north boundary of petitioner's property inter-sects the western edge of the Springhill Road right-of-way at a point south of the intersection Springsax Street (which is a paved road) forms when it dead ends into Springhill Road. Petitioner's property does not abut the intersection. The distance between the northeast corner of petitioner's property and the Springsax Street intersection was variously put at "a few feet," (T.189), 100 feet, 100 to 200 feet, and 335 feet. The south boundary of petitioner's property intersects the western edge of the Springhill Road right-of-way at a point some distance north of the intersection between Springhill Road and a dirt road known as Gun Club Road. Specifications Disseminated Richard L. Pelham, who is president of petitioner Equity Resources, Inc., read in the newspaper about respondent's intention to lease office and warehouse space. At his request, Karen Allen, an employee of Universal Equities, Inc., another company with which Mr. Pelham is affiliated, picked up a copy of the request for proposal and bid proposal submittal form at a DOR office. The request for proposal and bid proposal submittal form package which Ms. Allen picked up included a paragraph describing the geographical boundaries of the service area in which DOR hoped to lease space. The paragraph states: Space to be located within or abutting the boundaries starting at the corner of U.S. 90 W. and Capital Circle Southwest (263) proceed South on Capital Circle to Orange Avenue to Springhill Road, South on Springhill to Springsax, East on Springsax to Northridge Road, South on Northridge to Ridge Road, East on Ridge Road to State Road 61 (Crawfordville Hwy), North on SR 61 to U.S. 27, North on U.S. 27 to West Tharpe Street, West on Tharpe Street to Capital Circle NW, south on Capital Circle to Tennessee Capital Boulevard, Southwest on Tennessee Capital Boulevard to U.S. 90 and East on U.S. 90 to Capital Circle Southwest (263). (See Map Attachment B) Petitioner's Exhibit No. 2, p. 8. Devoid of any markings purporting to represent boundaries, the map attached to the bid package Ms. Allen picked up depicted much of Tallahassee, including large areas outside the boundaries the quoted paragraph specified. Many of the request for proposal and bid proposal submittal form packages DOR distributed did include maps on which the area described in paragraph 14A on page eight was outlined. The map in the master package showed boundaries, but they had to be replicated manually on copies. For outlining, DOR employee(s) used an implement that leaves a yellow mark which most copying machines do not reproduce. Mr. Pelham asked Richard Gardner, who may or may not have been at the time an officer or employee of Equity Resources, Inc. (T.62), but who testified he was an officer as of the time of the hearing (T.63), to attend a preproposal conference. Mr. Gardner did attend without, however, taking with him either the request for proposal and bid proposal submittal form package Ms. Allen had obtained or his eyeglasses. After the conference concluded, he asked for a copy of the request for proposal and bid proposal submittal form package. Michael S. Partin, a senior management analyst for DOR, asked another DOR employee to make a copy. When this effort proved unsuccessful (the paper jammed and half pages were produced), he did it himself. After consulting the master bid package, Mr. Partin used a yellow marker to outline on the map he gave Mr. Gardner the area described in the request for proposals. Confusion Feigned Petitioner's Exhibit No. 4 is a copy of a map included in a bid package as Attachment B to a request for proposals. On it, somebody has drawn, with a yellow marker, a boundary that differs from the boundary drawn on the master map, but only in the vicinity of petitioner's property: instead of tracing Springhill Road south to Springsax Street and turning east, the boundary represented on Petitioner's Exhibit No. 4 proceeds south on Springhill Road, past petitioner's property, to Gun Club Road, and turns east there. Mr. Gardner testified that Petitioner's Exhibit No. 4 was the map given to him as part of the package he received after the preproposal conference. But Mr. Partin's contrary testimony that Petitioner's Exhibit No. 4 is not the map he gave Mr. Gardner has been credited. The map he gave Mr. Gardner "look[ed] like [Petitioner's] Exhibit No. 5." T.166. Petitioner's Exhibit No. 5 unambiguously depicts the boundary turning east from Springhill Road onto Springsax Street, in complete consonance with the verbal description. Mr. Gardner also testified that he understood from discussions with Mr. Partin that the boundary went south to Gun Club Road before turning, but this testimony has not been credited. Both Mr. Partin and Barbara Foster Phillips, who was present during the conversation, testified that nothing that was said could reasonably have been understood to mean this. The latter account has been accepted as truthful. Mr. Pelham's testimony that he relied on (a) map(s) as establishing (a) boundar(ies) inconsistent with the boundary clearly described in paragraph 14A on page eight of the request for proposal has not been credited. After determining the location of petitioner's property, DOR did not evaluate petitioner's proposal further, even though petitioner offered to lease space for significantly less than any other offeror, and even though petitioner's property was closer to other DOR facilities than many points within or abutting the boundaries set out in the request for proposals. Surprise at Hearing On the master map itself, Petitioner's Exhibit No. 5, because of the width of the marker as it turned the corner from Springhill Road onto Springsax Street, yellow extends down Springhill Road far enough south of Springsax Street that at least some of petitioner's property fronts on the yellowed portion of Springhill Road. Not until final hearing, however, did any bidder see the master map.
Recommendation It is, accordingly, RECOMMENDED: That respondent reject petitioner's proposal for lease No. 730:0106 as nonresponsive. DONE and ENTERED this 9th day of November, 1990, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of November, 1990. APPENDIX Petitioner's proposed findings of fact Nos. 4 and 13 have been adopted, in substance, insofar as material. Petitioner's proposed findings of fact Nos. 1, 2, 7, 8, 9, 10 and 12 have been rejected as unsupported by the weight of the evidence. With respect to petitioner's proposed findings of fact Nos. 5 and 6, no bidder saw the "master map" before the final hearing in the present case. Although the breadth of the marker yellowed Springhill Road below the intersection with Springsax Street, the turn onto Springsax Street is unambiguously depicted on the master map. With respect to petitioner's proposed finding of fact No. 3, unavailability of the legal description was not proven. With respect to petitioner's proposed findings of fact Nos. 11 and 14, the lease was to last five, not ten years. Respondent's proposed findings of fact Nos. 1, 2, 4, 5, 6 through 20, 22, 23, and 25 through 29 have been adopted, in substance. With respect to respondent's proposed finding of fact No. 3, the evidence did not establish that DOR "determined a boundary area they felt offered the optimum number of properties." With respect to respondent's proposed finding of fact No. 21, Pelham testified both that the property did and that it did not abut the intersection. With respect to respondent's proposed finding of fact No. 24, the distance depends on the method of measurement. With respect to respondent's proposed findings of fact Nos. 30 and 31, Mr. Partin's subjective views are immaterial. Intervenor's proposed findings of fact Nos. 1 through 4, 7 through 13 and 16 through 24 have been adopted, in substance, insofar as material. With respect to intervenor's proposed findings of fact Nos. 5 and 6, Mr. Partin's subjective intent is immaterial. With respect to intervenor's proposed findings of fact Nos. 14 and 15, the distance depends on the method of measurement. Copies furnished: Gene T. Sellers, Esquire Department of Revenue Tallahassee, FL 32399-0100 William A. Friedlander, Esquire Equity Resources, Inc. 424 East Call Street Tallahassee, FL 32301 Kenneth G. Oertel, Esquire Oertel/Fregley/Sheldon Partnership 2700 Blairstone Road Tallahassee, FL 32301 J. Thomas Herndon Executive Director Department of Revenue 104 Carlton Building Tallahassee, FL 32399-0100 William D. Moore, General Counsel Department of Revenue The Capitol, LL-10 Tallahassee, FL 32399-0250
The Issue The issue in this case is whether the Respondent, the Department of Transportation (DOT), arbitrarily refused to accept the low bid submitted by the Petitioner, Quinn Construction, Inc. (Quinn), and Bay Machine, Inc., for State Project No. 15200-3902.
Findings Of Fact On or about December 7, 1994, the Petitioner, Quinn Construction, Inc. (Quinn), submitted a $1,695,534.84 bid on behalf of Quinn and Bay Machine, Inc., in response to a November, 1994, Department of Transportation (DOT) solicitation for bids on State Project No. 15200-3902. State Project No. 15200-3902 was essentially the same project for which the DOT previously solicited bids on or about July 1, 1994. The earlier solicitation for bids was cancelled when all bids were rejected, and the bid solicitation process was reinitiated. All bidders were required to furnish a bid guaranty, and the parties stipulate that any bid not accompanied by a bid guaranty would be declared nonresponsive. Attached to the Quinn/Bay Machine bid was a Bid or Proposal Bond on DOT Form 375-020-09. There was only one bridge rehabilitation project for Pinellas County among the projects for which the DOT was opening bids on December 7, 1994, and the bid bond was attached to the bid proposal of Quinn and Bay Machine for State Project No. 15200-3902. Utilizing the DOT form, the Quinn bid bond described the proposal being bonded as being "for constructing or otherwise improving a road(s) and/or bridge(s) or building(s) in Pinellas County; particularly known as Bayway 7918 Bridge Rehab." The part of the form calling for identification of the "Project No." was left blank. The bid bond was executed by James M. Moore as attorney- in-fact for North American Specialty Insurance Company. In addition to calling for the "Project No." in DOT Bid or Proposal Bond Form 375-020-09, the DOT routinely furnishes all bidders a Bidder's Checklist which reminds bidders to use the form and to identify the project on the form by county, by the federal aid number(s), if applicable, and by the State Project Job Number. Although the Bidder's Checklist was not in the bid package received by Quinn in connection with the November, 1994, solicitation for bids, Quinn received a Bidder's Checklist for the July, 1994, solicitation for bids on the same project and for many other previous bid solicitations. In prior bid proposal submissions, including the bid proposal submitted for the same project in August, 1994, Quinn had its surety use the "Project No." to identify the project on the bid bond. The attorney-in-fact for the bond company testified that the number 7918 on the bond was a typographical error. He testified that he thought 798 was the number that was supposed to be on the bond to identify the project. The WPI No. for the project was 7116982. The applicable State Road number was 679. The applicable bridge number was 150049. Although DOT Bid or Proposal Bond on DOT Form 375-020-09 called for identification of the "Project No.," DOT would have accepted a bid bond that identified the project by any of these numbers or by the official name of the bridge, if any. The bridge in question has no official name. It was not even proven that the bridge is commonly known as the Bayway 7918 Bridge, or even as the Bayway Bridge. The bridge in question is part of the Pinellas Bayway, which is a system of roads, causeways and bridges connecting St. Petersburg and St. Petersburg Beach and several small keys in Boca Ciega Bay. There are two state roads on the Pinellas Bayway: State Road 682, which connects State Road 699 to the west on St. Petersburg Beach to Interstate 275 to the east in St. Petersburg; and State Road 679, which intersects State Road 682 and runs south through Tierra Verde into Fort DeSoto Park on Mullet Key. Both 682 and 679 have combination fixed-span and bascule (draw) bridges. The bridge in question is on 679. When the DOT opened the bid of Quinn and Bay Machine, the incorrect identification of the project on the bid bond was noticed, and the question was referred to the Technical Review Committee. During its meeting on December 21, 1994, the Technical Review Committee sought the advice of its legal counsel and was advised that the bond probably would not be enforceable due to the inaccurate identification of the project to which it pertained. Based in part on the advice of counsel, the Technical Review Committee voted unanimously to recommend to the DOT Contract Awards Committee that the bid proposal be rejected as being non-responsive because of the bid bond. On December 23, 1994, the Contract Awards Committee met and voted unanimously to reject the bid proposal as being non-responsive because of the bid bond. Instead, the Committee accepted the bid proposal of M & J Construction Company of Pinellas County, Inc. (M & J). It was not arbitrary for the DOT to conclude that the Quinn bid bond was, or might well have been, unenforceable due to the inaccurate identification of the project to which it pertained. The DOT did not even consider whether the Quinn bid bond also may have been invalid and unenforceable because it named just Quinn as the principal, instead of both Quinn and Bay Machine, the actual entity that was prequalified to bid on the project and the actual entity bidding on the project. It also was not arbitrary for the DOT to conclude that submitting an unenforceable bid bond is not a minor irregularity. If a successful bidder does not enter into a contract, the project would be delayed while it is being rebid. The delay itself would result in a monetary loss. In addition, rebidding the project would result in additional costs to the DOT. Submitting an unenforceable bid bond could give a bidder the competitive advantage of feeling able to escape from having to contract and perform in accordance with a low bid, if advantageous to the bidder, without being liable under the bid bond.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Transportation enter a final order dismissing the Petitioner's bid protest and awarding State Project No. 15200-3902 to M & J Construction Company of Pinellas County, Inc. RECOMMENDED this 26th day of April, 1995, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of April, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-0564BID To comply with the requirements of Section 120.59(2), Fla. Stat. (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. (It appears that the Petitioner's proposed findings of fact are found at pages 2-5 of its Proposed Findings of Fact and Conclusions of Law. For purposes of these rulings, the unnumbered paragraphs on those pages are assigned consecutive numbers.) Rejected in part. (Joint Exhibit 2 refers to State Road 679, not the project, as having the "Local Name: Pinellas Bayway." Joint Exhibit 5 also only refers to State Road 679, not the project, by the name "Pinellas Bayway." Only the front covers of the technical specs refer to the "Pinellas Bayway Bridge." The other pages refer to the "Pinellas Bayway," and all of the pages also include the State Project Number.) Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. First sentence, accepted and incorporated to the extent not subordinate or unnecessary. Second and last sentences, rejected as not proven. Rejected in part as argument and in part as not proven. Last sentence accepted, but ambiguous and not legally significant, subordinate and unnecessary, whether DOT could "tie" the bid bond to the bid. Penultimate sentence, rejected in part as not proven (that Exhibit 4 "identified the project as the Pinellas Bayway"); otherwise, accepted and incorporated to the extent not subordinate or unnecessary. The rest is accepted and incorporated to the extent not subordinate or unnecessary. First sentence, rejected as not proven. (The evidence was clear that the DOT form requires a state project number and that the Bidder's Checklist provided to bidders by the DOT reminds bidders to use the form and identify the project by county, federal aid number(s), if applicable, and State Project Job Number.) Second sentence, subordinate and cumulative. Rejected as conclusion of law. Last sentence rejected as not proven that North American identified the project or that it used the local name of the bridge. The rest is rejected as not proven because the evidence was clear that the DOT form requires a state project number and that the Bidder's Checklist provided to bidders by the DOT reminds bidders to use the form and identify the project by county, federal aid number(s), if applicable, and State Project Job Number.) Accepted but subordinate and unnecessary. Rejected as not proven that DOT was arbitrary. The rest is subordinate, in part cumulative and in part argument. Subordinate, cumulative and argument. Rejected in part as conclusion of law, in part as argument and in part as not proven. Respondent's and Intervenor's Proposed Findings of Fact. All of the DOT's and the Intervenor's proposed findings of fact are accepted and are incorporated to the extent not subordinate or unnecessary or argument. COPIES FURNISHED: Suzanne Quinn, Esquire 1321 77th Street East Palmetto, Florida 34221 Thomas H. Duffy, Esquire Department of Transportation 605 Suwannee Street Tallahassee, Florida 32399-0450 Joseph G. Thresher, Esquire One Mack Center 501 E. Kennedy Bouelvard, Suite 725 Tampa, Florida 33602 Ben G. Watts Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Thornton J. Williams, Esquire General Counsel Department of Transportation 562 Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450
Findings Of Fact By Invitation to Bid for Lease NO. 590:1944, Respondent invited lease proposals for approximately 15,206 square feet of office space "located within the following boundaries: On the North, Aloma Avenue/Fairbanks Avenue the East, Semoran Boulevard the South, Colonial Drive, and on the West, Mills Avenue." The geographic area includes as many as 100 office buildings, although the invitation only generated three bids. The Invitation to Bid announced a Pre-Bid Conference on December 22, 1987. Interested parties were directed to contact Linda N. Treml, whose telephone number was provided, for "bid specifications and information regarding the space." The Invitation to Bid stated that "[a]ny questions concerning this project are to be directed to [Ms. Treml]" and "prospective bidders are encouraged to consult with [Ms. Treml] beforehand in an attempt to enable as correct a bid submittal as possible." The Invitation to Bid required that certain attachments accompany the bid proposal and referred the prospective bidder to paragraph 9 of the Bid submittal Form. The required attachments included a scaled floorplan "showing present configurations with measurements," net rentable square footage calculations using floorplan measurements, and a preliminary site layout. The Invitation to Bid stated that Respondent reserved the right to waive any minor informalities or technicality and seek clarification" of bids received, when such is in the best interest of the state. Responding to Respondent's newspaper advertisement and direct-mail solicitation for bids, James W. Boyle, who is a real estate broker active in leasing and property management, requested from Ms. Treml an Invitation to Bid and Bid Submittal Form. Mr. Boyle regularly reviews announcements of forthcoming leasing activity by state agencies. If he is aware of a building that appears to meet the agency's requirements, he contacts the building's owner or manager and informs him or her that he may have a prospective tenant. After receiving the bid materials for Lease No. 590:1944, Mr. Boyle contacted Kathryn Doyle, who is the leasing manager of Petitioner, and learned that Petitioner could accommodate Respondent's space needs for the term sought in the Lakeview 436 office building. Mr. Boyle assisted Ms. Doyle in the preparation of the Bid Submittal Form for Petitioner. In his first conversation with Ms. Doyle, Mr. Boyle ascertained that Petitioner's building carried a Semoran Boulevard street address and in fact had direct access to Semoran Boulevard. Petitioner's building lies on the east side of Semoran Boulevard, which serves as the eastern boundary of the geographic area described in the Invitation to Bid. Three bids were submitted in response to the subject Invitation to Bid. When they were opened, Ms. Treml and her supervisor, George A. Smith, determined that bids of Petitioner and a third party were nonresponsive because their office buildings were outside the geographic area specified in the Invitation to Bid. These bids were not considered further. Mr. Boyle had previously represented the owners of the FARE building several months earlier in a bid for Lease No. 590:1895. The Invitation to Bid in that case, which was issued by Respondent and named Ms. Treml as the contact person, provided that the proposed office space must be located within the following boundaries: Beginning at the intersection of US 17-92 and Colonial Drive, then west on Colonial Drive to the intersection of Edgewater Drive, then north on Edgewater Drive to the intersection of Kennedy Blvd. . ., then east on Kennedy Blvd. . . . to the intersection of US 17-92, then south on US 17- 92 to the point of beginning." Although Mr. Boyle's client was not awarded Lease NO. 590:1895 for reasons not relevant here, his client's bid, as well as the bid of another unsuccessful bidder owning a building on the east side of the highway serving as the east boundary of the geographic area, were considered responsive and thus within the specified geographic area. Ms. Treml interpreted the boundary description in Lease NO. 590:1944 differently from the boundary description in Lease NO. 590:1895. The description for Lease NO. 590:1895 defined the boundaries by "beginning" at a certain intersection, then proceeding "on" a highway, and so on. The description for Lease NO. 590:1944 defined the boundaries by identifying landmarks "on the north," then the "east," and so on. At the time of assisting in the preparation of Petitioner's bid, Mr. Boyle was also aware of an Invitation to Bid issued by Respondent for Lease NO. 590:1875. In this case, Respondent specified office space "in the following area of Brevard County, Florida: Beginning at the intersection of U.S. Highway 1 and State Road 50, then West on SR-50 to the intersection of 1-95, then North on 1-95 to the intersection of SR-406 . . . then East on SR-406 to the intersection of U.S. 1, then South on U.S. 1 to the point of beginning." In the case of Lease NO. 590:1875, the bid contact person, Lynn Mobley, issued a clarification letter stating that any building located on either side of the boundary road with an address on the boundary road would be considered to be within the boundary. Ms. Mobley and her supervisor, Ernest Wilson, who are Respondent's District 7 Facilities Services Assistant Manager and Manager, respectively, have consistently advised potential bidders that a building located on a boundary highway is included in the geographic area even though it would be outside the area if the dividing line were the centerline of the highway. Mary Goodman, Chief, Bureau of Property Management of the Department of General Services, testified that, in the course of her review of leasing activities by various state agencies, she has historically guided agencies that, if a building abuts a boundary highway but is not, strictly speaking, within it, the agency "could waive that as a minor technicality and consider it a responsive bid." Neither Mr. Boyle, Ms. Doyle, or any other representative of Petitioner spoke to Ms. Goodman prior to submitting the subject bid proposal. Ms. Treml customarily waives minor irregularities in bid submittals. However, she does not treat the location of a building outside the geographic area as a minor irregularity. To do so would be unfair to owners of other buildings outside the geographic area who took the geographic description at its face value and never submitted bids. Ms. Doyle received the bid materials from Mr. Boyle after the Pre-Bid Conference had taken place. However, Mr. Boyle elected not to attend the Pre- Bid Conference at which Ms. Treml explained, among other things, her interpretation of the specific geographic area. He chose not to attend because he felt that he would not learn anything relevant at the conference, which was attended by a representative of Intervenor. Neither Mr. Boyle, Ms. Doyle, or any other representative of Petitioner contacted Ms. Treml prior to submitting Petitioner's bid. Mr. Boyle, whose compensation in this case is entirely contingent upon a successful bid, estimates that he spent about 20 hours working on Petitioner's bid. Ms. Doyle estimates that she spent about 40 hours working on the bid. Petitioner also spent $800 in obtaining an "as-built" drawing of the space that accompanied its proposal. By letter dated February 22, 1988, Respondent notified the bidders of its decision to award the lease contract to Intervenor. Petitioner filed a notice of intent to protest the award by letter dated February 24, 1988. Ms. Treml met Mr. Boyle and Ms. Doyle on March 1, 1988, and cited the location of Petitioner's building as the only reason for the determination of nonresponsiveness. The attempt at mediation having failed, Petitioner filed a formal written protest of the award by letter dated March 3, 1988. Petitioner attached to its bid proposal an "as-built" drawing. Although drawn to scale, the drawing did not bear the measurements of the then- present interior tenant improvements, mostly walls, nor did it disclose on its face any calculations showing how the rentable area was computed from the gross area. These omissions were due to Mr. Boyle's advice to Ms. Doyle that such information would be unnecessary in this case. The omissions from Petitioner's "as-built" drawing were rendered less critical by the fact that Respondent would have the right under the lease to require the landlord, at its expense, to remove the present improvements and re- configure the space to Respondent's demands. However, one purpose of the floorplan is to show where the space is located within the building. Another purpose is to verify the rentable area calculation by showing the measurements of items, such as restrooms, that should not be included in the rentable area for which Respondent is charged rent. The drawing is supposed to show the rentable area computation. Additionally, even though Respondent could insist on a total renovation of the premises, Respondent might wish to evaluate whether it could use a portion of the existing space in order to reduce the possibility of construction delays. George A. Smith, the Senior Management Analyst for Respondent who reviewed Ms. Treml's determination of nonresponsiveness prior to the award of the subject lease, testified that the deficiencies in Petitioner's "as-built" drawing were not a "minor irregularity."
