Findings Of Fact During March 1988, the Respondent issued an Invitation to Bid by which it sought to lease 17,973 net usable square feet of office space to be located within a specified geographic area in Tampa, Florida, under a nine year lease with two additional three year option periods. This Invitation to Bid is referred to as Lease Number 590:1927. Three bids were received in response to the Invitation to Bid, and they were opened on May 13, 1988. Bids were received from the Petitioner, 8900 Centre, Ltd., and the Allen Morris Management Company. All bidders were determined to be responsive to the Invitation to Bid. Despite the fact that petitioner submitted the lowest bid, Respondent notified Petitioner by letter dated June 10, 1988, of its intent to award Lease Number 590:1927 to 8900 Centre, Ltd., as the lowest and best bidder. Petitioner has timely filed its protest seeking review of that decision. It is undisputed that Petitioner submitted the lowest bid. For the first year of the lease, Petitioner bid $7.85 per square foot, while 8900 Centre bid $7.95 per square foot. Thereafter, Petitioner proposed a yearly increase of 50 cents per square foot, reaching $11.85 per square foot in the ninth year of the lease, while 8900 Centre proposed annual increases of approximately 75 cents, reaching $14.00 per square foot in the ninth year. This equates to an actual dollar difference over the nine year term of approximately 185,000. However, using a present value methodology and a present value discount rate of 8.81 percent referred to on page 17 of the bid submittal form, the present value difference in these two bids is approximately $1,000 per month, which would result in a present value difference between Petitioner and 8900 Centre of approximately $108,000 over the nine year period. Neither the Invitation to Bid, bid specifications, nor the actual bids were offered into evidence. One page of the bid submittal form, designated as page 17 of 18, was offered and received in evidence. This portion of the bid submittal form states that the "successful bid will be that one determined to be the lowest and best." It also sets forth evaluation criteria, and assigns weights to each criteria. The evaluation criteria include associated fiscal costs (35 points), location (40 points) and facility factors (25 points) . A synopsis of bids was also offered and received in evidence showing the points awarded to each bidder by the Respondent's bid evaluation committed. Out of a possible 100 points, 8900 Centre received 95.17 points, while Petitioner received 82.25 points and the Allen Morris Management Company received 70.67 points. Petitioner asserts that the members of the evaluation committee were not qualified or knowledgeable in basic construction, design and engineering principles, and therefore could not competently evaluate the bids submitted. However, Petitioner did not offer competent substantial evidence to support this contention. Only the chairperson of the committee, Susan Jennings, was called to testify, and she appeared thoroughly knowledgeable in the bid process, the needs of the agency, the bid requirements and the representations made to the committee members by each bidder, including Petitioner, when the committee made its site visit to each location. Since the actual Invitation to Bid, bid specifications, and evidence about the other committee members were not introduced, it is not possible to know what the specific duties of the committee were, how they were to carry out their duties their qualifications and training, and whether they failed to competently carry out these duties, as alleged by Petitioner. Despite Petitioner's lower bid, Respondent awarded this lease to 8900 Centre, Ltd., based upon the evaluation committee's determination assigning 8900 Centre the highest number of evaluation points. Out of a possible 35 points for fiscal costs, Petitioner received 34 and 8900 Centre received 31.5. Thus, Petitioner's status as low bidder is reflected in the points awarded by the committee. Since neither the bid invitation or specifications were introduced, no finding can be made as to whether the difference between these two bidders comports with any instructions or directions provided by the agency to potential bidders, or whether this difference of 2.5 points on this criteria reasonably reflects and accounts for the dollar difference in these two bids. Petitioner received 34.75 points out of a possible 40 points on the general evaluation criteria "location," while 8900 Centre received the full 40 points. Within this criteria, there were three subcategories, and on the first two subcategories (central area and public transportation) there was an insignificant difference of less than one-half point between Petitioner and 8900 Centre. The major difference between these two bidders which accounts for their significant difference on the location criteria, was in the subcategory of environmental factors, in which Petitioner received 15.17 points and 8900 Centre received the full 20 points. Petitioner did not present competent substantial evidence to discredit or refute the committee's evaluation in the subcategory of environmental factors. To the contrary, the only testimony from a committee member was that of Susan Jennings, and according to her, Petitioner failed to explain the availability of individual air conditioning and heating controls, or the possibility of separate program entrances, which could be made available under its bid. Although Petitioner sought to explain at hearing that these desires of the agency could be accommodated in its bid, there is no evidence that such an explanation was provided in its bid or during the bid process when the evaluation committee visited the Petitioner's site. The committee was aware, however, that 8900 Centre would provide individual heating and air conditioning controls, as well as separate outside entrances for the three programs which would occupy the leased space. Additionally, the committee was concerned, according to Jennings, that parking areas at Petitioner's facility were more remote and removed from the building entrance than at 8900 Centre, and were somewhat obscured by trees and shrubbery, thereby presenting a potential safety concern for employees working after dark. Finally, every employee would either have a window or window access at 8900 Centre, while it was not explained that Petitioner's site would offer a similar feature. Thus, Petitioner failed to establish that the evaluation committee erred in assigning a significantly greater number of points for environmental factors to 8900 Centre than to Petitioner. The evidence reflects a reasonable basis for this difference. The other significant difference between these two bidders was in the subcategory for layout and utilization under the evaluation criteria "facility." Petitioner received 13.67 points while 8900 Centre received a full 20 points. Jennings explained that the separate outside entrances leading directly into the three programs that would occupy this space was preferred to a single reception area for all three programs. Petitioner offered the single reception area in its bid and site visit presentation, while 8900 Centre made it clear that each program would have its own entrance. Since these programs do not have a receptionist position, and none wanted to give up a secretarial position to serve as receptionist for all three programs, the committee did not consider the single reception area entrance to be desirable. Additionally, Petitioner's facility was a two-story building, while 8900 Centre is a single story facility. Jennings explained that the committee considered a ground level facility to be preferable to a two story building, particularly since the Medicaid program was to occupy the major portion of this space. The Medicaid program would have to be split up at Petitioner's facility, either in two separate buildings or on two levels of the same building, while at 8900 Centre, Medicaid could be accommodated in one, single story building, with the other two programs in a second, single story building. Finally, parking at 8900 Centre was directly next to, and outside the entrance of the building, while Petitioner offered to make assigned spaces available in a general parking area which serves its entire 100,000 square foot complex. The parking offered by Petitioner is more remote than that offered by 8900 Centre, and would be less secure at night due to a greater distance from the building entrances and the parking lot. Thus, Petitioner failed to establish that the committee erred in assigning a significantly greater number of points for layout and utilization to 8900 Centre than to Petitioner. There is a reasonable basis for this difference, according to the evidence in the record.
Recommendation Based upon the foregoing, it is recommended that Respondent enter a Final Order dismissing Petitioner's protest to Lease Number 590:1927. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 9th day of December 1988. DONALD D. CONN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1050 Filed with the Clerk of the Division of Administrative Hearings this 9th day of December 1988. APPENDIX (DOAH Case Number 88-3765 BID) Rulings on Petitioner's Proposed Findings of Fact: Adopted, in part, in Finding of Fact 1, but Rejected in Finding of Fact 10, and otherwise as not based on competent substantial evidence in the record. Adopted in Finding of Fact 5. 3-5. Adopted in Finding of Fact 4, but Rejected in 7. 6-7. Rejected in Finding of Fact 8. Rejected in Finding of Fact 10, and otherwise as not based on competent substantial evidence in the record. Rejected in Findings of Fact 9 and 10, and otherwise as not based on competent substantial evidence. Rulings on the Respondent's Proposed Findings of Fact: Adopted in part in Finding of Fact 1, but otherwise rejected as not based on competent substantial evidence. Adopted in Finding of Fact 4. 3-4. Adopted in part in Findings of Fact 5 and 6, but otherwise rejected as not based on competent substantial evidence in the record of this case. Adopted In Findings of Fact 5, 7-10. Adopted in Finding of Fact 5. Adopted in Finding of Fact 7. Adopted in Finding of Fact 8. Rejected as irrelevant and unnecessary since the point difference in this subcategory is insignificant. Adopted in Finding of Fact 9. 11-12. Adopted in Finding of fact 10. COPIES FURNISHED: Michael V. Giordano, Esquire 7821 North Dale Mabry Suite 100 Tampa, Florida 33614 Jack Farley, Esquire W. T. Edwards Facility 4000 West Buffalo Fifth Floor, Room 520 Tampa, Florida 33614 Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Miller, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
Findings Of Fact Based upon the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made. On October 11, 1991, DOT's District Four office let out for bid district contracts E4551 and E4554. Contract E4551 calls for the mechanical sweeping of Interstate 95 in Broward County. Contract E4554 calls for the mechanical sweeping of Interstate 95 in Palm Beach County. At a mandatory pre-bid conference, the bidders for the Contracts were provided with a packet which included a Notice to Contractors and Standard Specifications. The Notice to Contractors is a four page document which is specific to each contract. The Standard Specifications are the same for all district contracts. Both the Notice to Contractors and the Standard Specifications to the bidders required bidders to submit proof of the ability to acquire a performance and payment bond in an amount equal to the contract bid price. Bidders could satisfy this requirement by submitting a bid guarantee of 5% of the bid, submitting a notarized letter of intent from a bonding company or by providing a Certificate of Qualification issued by Respondent. The Notice to Contractors for both Contracts provided as follows: Failure to provide the following with each bid proposal will result in rejection of the contractor's bid.... District contracts of $150,000 or less require the following as proof of ability to acquire a performance and payment bond: A notarized letter from a bonding company, bank or other financial institution stating that they intend to issue a performance and payment bond in the amount of your bid, should your firm be awarded the project; in lieu of a notarized letter the following may be substituted: (1) a bid guarantee of five percent (5%); or (2) a copy of the Contractor's Certificate of Qualification issued by the Department. (No emphasis added) Similarly, the first Standard Specification provides: 1.1 Bidders (contractors) A contractor shall be eligible to bid on this contract if:... (2) Proof of ability to acquire a performance and payment bond in an amount equal to the contract bid price is provided to the District Contract Administrator with the bid proposal. As such proof all bids must be accompanied by a notarized letter from a bonding company, bank or other financial institution stating that they intend to issue a bond in the amount of your bid, should your firm be awarded the project.... The requirement to submit proof of the ability to acquire a performance and payment bond has been imposed on the Districts by DOT Directive 375-00-001-a (hereinafter the "Directive".) This Directive was in place at all times material to this proceeding. Section 3.2.2 of the Directive provides: A contractor shall be eligible to bid if: ...Proof of ability to acquire a performance and payment bond in an amount equal to the contract bid price is provided to the minicontract administrator with the bid proposal. As such proof all bids must be accompanied by a notarized letter from a bonding company, bank or other financial institution stating that they intend to issue a bond in the amount of the bid, should the firm be awarded the project. A bid guaranty as specified above may substitute as proof of ability to obtain a performance and payment bond. This applies to bids amount over or under $150,000. A copy of the Contractor's Certificate of Qualification issued by the Department may be substituted in lieu of a notarized letter for those contracts not requiring a bid bond. The bids for the Contracts were opened on October 11, 1991 in Fort Lauderdale, Florida. Bids were received from four bidders: CPM, SCA, Florida Sweeping, Inc. and P. F. Gomez Construction Co., Inc. In its bid proposals, SCA included executed bid bonds in an amount sufficient to cover the amount of each bid proposal. Each bid bond cost $55.00. CPM did not submit executed bid bonds with its proposals. Instead, CPM submitted letters from Mark A. Latini dated September 25, 1991. Those letters were provided on the stationery of Bonina-McCutchen-Bradshaw, Insurance and indicate that Mr. Latini is the "bond manager." The letters provide as follows: Amwest Surety Insurance Company is the surety for the above-referenced contractor and stands ready to provide the necessary performance and payment bond for the referenced bid should Certified Property Maintenance, Inc., be low and awarded the referenced contract. All bonds are subject to normal underwriting requirements at the time of the bond request.... The letters submitted by CPM with its bid proposals were not notarized and were not binding obligations to issue bonds since they were conditioned upon meeting certain unspecified underwriting requirements at the time of the bond requests. The submitted bids were reviewed by the District Four Contractual Services Office. The bids submitted by CPM were the lowest for each contract. Its bid for Contract No. E4551 was $109,343.97. Its bid for Contract No. E4554 was $30,312.63. SCA's bids for the Contracts were $139,442.14 and $44,100.00, respectively. During the initial review of the bid proposals, the Contractual Services Office rejected CPM's bids for failure to have its bonding company "letters of intent" notarized. In addition, the bid proposals submitted by Florida Sweeping, Inc. were rejected for failure to note a required addendum and the bids submitted by P. F. Gomez Construction Co., Inc. were rejected because the "proposal bond was not of proper character". On October 18, 1991, DOT posted its Notice of Intent to Award the Contracts to SCA, the only bidder for the Contracts whose proposals had not been rejected. CPM timely filed protests of the proposed awards to SCA on October 22, 1991. The protests filed by CPM argued that its bids should not have been invalidated simply because the bonding company's letters did not include notary seals. At this point, the sole basis for the disqualification of CPM's bids was the failure to have the bonding company letters notarized. Respondent contends that, except for the absence of the notary seal, the letters submitted by CPM met the requirements of the Notice to Contractor and the Standard Specifications cited above. However, those letters are equivocal and do not evidence a binding commitment to issue a bond upon award of the contract. The DOT officials admit that they do not know what "normal underwriting requirements" would or could be required by CPM's bonding company. This conditional language makes it uncertain whether CPM could obtain the necessary bond. Therefore, it is concluded that those letters do not meet the requirements of the Notice to Contractors, the Standard Specifications or the Directive. A hearing on CPM's protest was not held. CPM's president, Raymond Hanousek, who prepared CPM's bid and attended the pre-bid meeting, called DOT's District office the day the bids were opened and was informed that his company's bid was low, but was rejected because its bond commitment letter was not notarized. Mr. Hanousek spoke with Joseph Yesbeck, the District's Director of Planning and Programs. After their conversation, Mr. Yesbeck reviewed the file and met with Teresa Martin, the District's contract administrator for construction and maintenance contracts, and other members of the contracting staff. Ms. Martin explained why CPM's bid had been disqualified, and the matter was thereafter discussed with the District and Department attorneys. After reviewing the situation, Mr. Yesbeck determined that the failure to submit notarized letters should be considered a non-material deviation and the bids submitted by CPM should be accepted and considered the low responsive bids. Mr. Yesbeck concluded that the absence of the notary seal did not give any competitive advantage to CPM and that defects of this nature are routinely allowed to be cured. Therefore, he reversed the contract administrator's decision to disqualify CPM on both Contracts. The District secretary concurred in the decision reached by Mr. Yesbeck to repost the award of the Contracts. Mr. Yesbeck prepared a joint letter of reposting which removed CPM's disqualification and declared CPM to be the low bidder for both Contracts. At the time Mr. Yesbeck made his decision, he had not reviewed the Directive from the Assistant Secretary's office stating that there must be a notarized letter showing proof of ability to obtain a performance and payment bond. Mr. Yesbeck did not review the Directive until his deposition was taken one week prior to the hearing in this case. According to Ms. Martin, the option to provide a notarized letter from a bonding company as an alternative to the posting of a 5% bid guarantee or obtaining prequalification was designed to promote participation in state contracting by small business and minority business enterprise applicants. While DOT was apparently trying to make it easier and cheaper for companies to bid by not requiring a bond to be posted, the DOT Directive and the bid documents still clearly required unconditional proof that a bid bond would be issued if the contract was awarded to the bidder. CPM was not prequalified nor did it post a bond. Thus, in order to meet the requirements of the Notice to Contractors and the Standard Specifications, CPM's only option was to submit a notarized letter showing proof of ability to obtain a performance and payment bond. DOT was never provided with any proof that CPM had been prequalified by the bonding company for a bond and/or that a bond would unconditionally be issued if CPM was awarded the Contracts. Because the letters stated they were "subject to normal underwriting requirements at the time of the bond request", there was some possibility CPM would not be able to obtain a bond. Such a condition was not permissible under the bid doucments. The decision to accept CPM's bid was contrary to the DOT Directive, the Notice to Contractors and the bid specifications which require that a bidder demonstrate proof of ability to obtain a performance and payment bond. Consequently, it is concluded that DOT's decision to accept the conditional, unnotarized letters submitted by CPM was arbitrary and capricious. There is some indication that other DOT Districts have, on occasion, waived the notarization requirement for the bond letter. However, it is not clear whether the language in the bid documents was the same or similar in those cases and/or whether the bond letters were conditional. In the past, whenever District Four has gotten a bid without a notarized bond letter, the bid was rejected. Apparently, there has never been a protest based on such a denial in District Four. Under Section 337.18, DOT does not need to require notarized, unconditional bond letters on contracts under $150,000. Indeed, there was a suggestion that some DOT Districts have dropped the requirement for certain contracts under $150,000. However, the bid documents in this case clearly required some proof that the bidder could acquire a performance and payment bond upon award of the Contracts. It was incumbent for all bidders to meet this requirement. It was arbitrary to delete this requirement after the bids were submitted.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding the bids submitted by CPM to be non-responsive and rejecting those bids. Petitioner should enter into negotiations with SCA regarding the award of the contract. In the absence of a favorable negotiation, Petitioner should enter a Final Order rejecting all bids and opening the Contracts up for new bids. DONE and ENTERED this 24th day of March, 1992, at Tallahassee, Florida. J. STEPHEN MENTON 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 24th day of March, 1992.
Findings Of Fact A request for bids to remodel and make additions to Washington Elementary School was issued by Respondent on August 15, 1990, for Project No. 0191-8210. The request for bids included requests for a base work (the "base bid") and additional work described in various alternates (the "total bid"). Respondent had the option of selecting one or more alternates or none of the alternates. Bids were filed by four bidders on January 15, 1990. Bid tabulations were posted on January 23, 1991. Petitioner was the lowest bidder, and Select Contracting, Inc. ("Select"), was the second lowest bidder. Petitioner's base bid was in the amount of $1,406,500. Petitioner's bid for the alternates eventually selected by Respondent was in the amount of $1,594,300. 2/ The bid documents required bidders to include a bid bond in an amount not less than five percent of the bid. Petitioner included a bid bond with its bid in the amount of $75,000 which was more than five percent of its base bid but less than five percent of the total bid calculated after taking into account the alternates selected by Respondent. Respondent recommended to its Superintendent that the contract should be awarded to Petitioner. Select filed a bid protest on January 25, 1991, seeking an informal hearing. Select alleged that Petitioner's bid was not responsive because it failed to include a bid bond for five percent of Petitioner's total bid, including the alternates selected by Respondent. Select included a bid bond for five percent of its total bid, including the alternates selected by Respondent. Respondent conducted an informal hearing on February 6, 1991, and proposed that all bids should be rejected and the project re-advertised. Respondent determined that Petitioner's bid was non-responsive in that it failed to include a bid bond in an amount equal to five percent of the total bid, including all alternates selected by Respondent. Respondent further determined that relevant language in the bid documents is ambiguous and may create an economic advantage for bidders who provide a bid bond in an amount less than that provided by other bidders. In a written analysis of the basis for recommending the rejection of all bids, the General Counsel stated: In the instant case, since bid amount is not specifically defined by the SCHOOL BOARD, one bidder may receive an unfair economic advantage over another by only including in its bid amount the cost for obtaining a bond which was less than the actual bid amount, (i.e. base bid plus alternates). The only reason that Respondent did not regard the amount of Petitioner's bid bond as a minor irregularity was that Respondent wanted to assure that all bidders were placed on ". . . an equal playing field . . ." by avoiding an unfair economic advantage for one or more bidders. 3/ Relevant language in the bid documents which defines the amount of the required bid bond is ambiguous. The Advertisement For Bid, in relevant part, requires that bids ". . . must be accompanied by a bid bond or cashier's check in an amount not less than five percent (5%) of the bid . . . ." Section 3.05(d) of the Instructions to Bidders refers bidders to Section 3.08 for purposes of the bid bond. Section 3.08 in relevant part requires bids to be accompanied by a bid bond ". . . of not less than five percent (5%) of the amount of the Bid . . . ." The bid proposal form, however, provides that the bidder ". . . further agrees that the security in the form of a Bid Bond, or Cashier's Check in the amount of not less that five percent (5%) of the total Bid Price . . . accompanies this Bid " A bid bond in an amount equal to five percent of the base bid satisfies the requirements in the bid documents for a bid bond in all but one instance. A bid bond in an amount not less than five percent of the base bid is not consistent with the representation in the proposal form that a bidder has included a bid bond equal to five percent of the total bid price. Respondent's bid documents have historically required a bid bond for only five percent of the base bid. The reference in the bid proposal form to a bid bond equal to five percent of the total bid is a recent change made by Respondent and is limited to the bid proposal form. The inclusion of a bid bond for only five percent of the base bid is consistent with Petitioner's historical practice in bidding previous jobs offered by Respondent. Petitioner obtained no unfair economic advantage over Select by including a bid bond for only five percent of the base bid while Select included a bid bond equal to five percent of the total bid, including the alternates selected by Respondent. The uncontroverted evidence establishes that both Petitioner and Select obtained their respective bid bonds at no cost to either bidder. Companies that issue bid bonds, including the companies that issued bid bonds to Petitioner and Select, do not impose a charge for issuing a bid bond in the ordinary course of doing business. Such companies make their money if and when they issue a performance and payment bond for the successful bidder. 4/ Respondent did not know at the time it formulated its proposed agency action that no unfair economic advantage was gained by a bidder who submitted a bid bond for five percent of the base bid rather than five percent of the total bid. Respondent was uncertain of the economic advantage derived from submitting a lower bid bond, if any. Counsel for Select represented that an economic advantage was gained by Petitioner. Respondent decided to reject all bids and look ". . . for . . . direction from a Hearing Officer. " Petitioner is ready, willing, and able to contract for and perform the work necessary to complete the Project. Petitioner is a pre-qualified contractor for projects undertaken by Respondent. Petitioner has a bonding limit substantially in excess of that required to complete the Project and substantial experience in similar projects for the Broward County School Board. Respondent is confident and has no concern over Petitioner's ability to complete the Project. 5/
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner's written formal protest be GRANTED and the contract awarded to Petitioner. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 3rd day of April, 1991. DANIEL MANRY 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 April, 1991.
The Issue The issue in this case is whether Respondent properly rejected the bid of Petitioner.
Findings Of Fact Respondent issued on February 28, 1990, an invitation to bid concerning the installation of bleachers at a high school ("ITB"). The ITB was duly advertised. Among the bidders was Interkal, Inc., which is a manufacturer of bleachers. The Interkal bid, which was timely submitted, was executed by its president. The Interkal bid contained a bid bond naming Interkal as principal and a certification from the secretary of Interkal reflecting a corporate resolution authorizing the execution of all bid documents on behalf of Interkal by its corporate officers. The Interkal bid disclosed two subcontractors. The supplier was shown as Interkal, and the erector was shown as Petitioner. Petitioner is the authorized factory representative for Interkal in Florida. As such, Petitioner solicits business and installs and removes bleachers on behalf of Interkal. As compensation, Petitioner receives commissions for such work from Interkal. However, the shareholder and chief executive officer of Petitioner is not a shareholder or officer of Interkal. In addition, Petitioner is not authorized to execute bid documents on behalf of Interkal. Petitioner is no more than a Subcontrator of Interkal. The bidder in this case was Interkal, not Petitioner, even though Petitioner handled much of the paperwork or its manufacturer. When an unrelated bidder was awarded the contract, Petitioner filed a formal written protest in its name. Interkal has not participated as a party in the subject proceeding.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that Respondent enter a Final Order dismissing the petition of Diversified Design Enterprises. ENTERED this 22nd day of May, 1990, in Tallahassee, Florida. ROBERT D. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of May, 1990. COPIES FURNISHED: Ned N. Julian Stenstrom, McIntosh, et al. P.O. Box 1330 Sanford, FL 32772-1330 William Merkel, President Diversified Design Enterprises 321 N.E. Second Avenue Delray Beach, FL 33444 Robert W. Hughes, Superintendent Seminole County School Board 1211 Mellonville Avenue Sanford, FL 32771
The Issue Whether Respondent's rejection of all bids for Lease No. 540:0920 was improper.
Findings Of Fact The Respondent published an invitation to bid seeking to lease approximately 9,907 net square feet of office space in Broward County (the Lease). There was no evidence of any irregularities in the preparation or the issuance of the invitation. The Petitioner, whose responsive bid was rejected by Respondent, timely and properly brought its protest and has standing to protest the Respondent's rejection of all bids for the Lease. Lynn Mobley was the statewide lease manager of the Respondent and had the responsibility to generally oversee the preparation of the bid package and the bid opening procedures. Barbara Lollie was a staff member under the supervision of Ms. Mobley and was in charge of the preparation of the request for bid proposals. Ms. Mobley's supervisor was a Ms. Barron. Five bids in response to the invitation to bid were duly received by Respondent. An evaluation committee chaired by Don Walker, Respondent's area administrator, was appointed to inspect the proposed properties and to evaluate the bids. The evaluation committee ranked the bids in the following order of preference: 1/ 1. In-Rel ($499,141.80) 2. Taft ($519,090.30) 3. Donlon ($541,119.90) 4. Procacci ($618,373.30) 5. Stirlingwood ($761,906.30) Thereafter the responses to the invitation were forwarded to Ms. Mobley's office for evaluation. Ms. Mobley's staff determined that the top two bids, those of In-Rel and Taft, were non-responsive. 2/ Ms. Mobley, who did not actively participate in the evaluation of the proposals, then advised Mr. Walker of that determination and advised him of two alternatives: to award the bid to the lowest responsive bidder or to reject all bids and re-advertise. The evaluation committee chaired by Mr. Walker had wanted to lease the property to either In-Rel or Taft. Mr. Walker told Ms. Mobley that he wanted to reject all bids and to re-advertise. Pursuant to the request for bids promulgated by the Respondent and Rule 13M-1.015, Florida Administrative Code, the Respondent reserved the right to reject any and all bid proposals for the Lease. The request for proposal of bids specifically stated: The Department reserves the right to reject any and all bid proposals for reasons which shall include but not be limited to the agency's budgetary constraints; 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. Following the telephone conversation between Mr. Walker and Ms. Mobley, Ms. Mobley sent a letter dated March 23, 1992, to all bidders which notified each bidder that all bids had been rejected. That letter did not state the reasons for the rejection of all bids. Mr. Walker sent a memo on March 20, 1992, to Ms. Lollie recommending the rejection of all bids. Although this memo predated the rejection letter and was subsequently made available to Ms. Mobley, the memo was received by Ms. Mobley's office after the rejection letter had been sent. The memo gave no explication of Mr. Walker's reasons for wanting to reject all bids. The Department of General Services (DGS) published lease rate guidelines for Broward County to inform the Respondent of maximum acceptable lease rates. The purpose of these DGS guidelines was to advise the Respondent that proposed lease rates above the guidelines would be summarily rejected. At the time of obtaining bid proposals, the DGS lease rate guidelines were the only established guidelines which could be consulted by the Respondent. At no time did the Respondent calculate a pre-bid estimate of what the Respondent felt was an acceptable range of lease rates in order to be used in determining whether lease rates were too high. The Petitioner's bid, along with the other responsive bidders, were within the DGS lease rate guidelines. Mr. Walker made the request for re-bid after he learned that the bids of Taft and In-Rel were non-responsive. Mr. Walker's decision to recommend the rejection of all bids was based only on the information that the two top choices of the evaluation committee had been found to be non-responsive and on his desire to reopen the bid process in the hope of attracting more bidders. 3/ Mr. Walker wanted to modify the specifications of the invitation to bid in two regards. First, he wanted to amend the specifications to permit the leased premises to be in more than one building. Second, he wanted the geographical boundaries in which the leased premises could be located to be expanded to hopefully attract additional bidders. Mr. Walker believed that a re-bid would provide a wider range of buildings at comparable prices from which to choose and would give him an opportunity to make changes to the bid specifications. His decision to recommend the rejection of all bids was not based on a lease bid analysis or on lease rate guidelines. The recommendation was not dictated by budgetary considerations, but by his desire to shop the bid. It was Mr. Walker's understanding that at the end of his telephone conversation with Ms. Mobley that the decision to reject all bids had been made and that all bids would be rejected. Ms. Mobley made the decision to reject all bids pursuant to the recommendation of Mr. Walker after obtaining input from Ms. Lollie and Ms. Barron. Although Ms. Mobley had Ms. Lollie's analysis of the five bids, that analysis made no comparison of the rates contained in the bids with existing lease rates or the DGS guidelines. Ms. Mobley did not consult the DGS lease rate guidelines, although she was generally familiar with those guidelines, and she was unaware of any budgetary constraints that would dictate the rejection of all bids. When Ms. Mobley decided to reject all bids, she did not compare the bid proposals to the existing lease rates paid by the Respondent for leased office space in Broward County. The decision to reject all bids was not made on the advice of an attorney. Although Ms. Mobley testified that all bids on the Lease were rejected solely for price considerations, the evidence presented established that the decision to reject all bids was not based on price, price guidelines, or the Respondent's budgeting constraints. The greater weight of the evidence establishes that Ms. Mobley rejected all bids because that was the action recommended by Mr. Walker. Respondent's invitation to bid did not contain any lease rate guidelines that would notify prospective bidders of a lease rate ceiling. There was no significant difference in the lease rates between the Taft and In-Rel bids that were favored but non-responsive and the third lowest bidder, the Donlon bid, which was responsive but rejected. Mr. Walker conceded that the Donlon bid was not rejected because of price considerations. Mr. Walker was of the opinion that the Donlon bid was at an acceptable price. He did not testify that the Petitioner's bid was at an unacceptable price and he did not testify as to what, other than the DGS guidelines, would be the maximum acceptable price. The DGS Lease Guidelines applicable to the bid for the Lease were as follows: A full service Lease (including electricity) -- $17.84 a square foot. 4/ Lease without electricity -- $15.18 a square foot. The present rate for the existing lease which was to be replaced by the Lease was $16.60 a square foot; this rate did not include electricity. If electricity was factored in at $2.50 a square foot, which was a factor regularly used by DGS, the present lease rate would be approximately $18.00 a square foot. The three responsive bids to the invitation were lower than the present lease after factoring in electricity. Ms. Goodman was of the opinion that Respondent's budget with respect to the Lease would be based on lease rates already in existence and consequently, that the responsive bids received and rejected were within the budget guidelines. Respondent offered no evidence to controvert that opinion. There was no evidence that the decision to reject all bids was based on economic considerations. All lease rates submitted by the rejected bidders were under the ceiling set by the DGS lease guidelines of $17.84. The Respondent acted arbitrarily when it rejected all bids.
Recommendation Based upon the foregoing findings of fact and conclusion of law, it is hereby recommended that the Respondent accept and evaluate the responsive bids submitted for the Lease and determine the proper recipient for an award of the Lease. RECOMMENDED this 29th day of June, 1992, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 29th day of June, 1992.
The Issue The primary issue for determination is whether Respondent's decision to rescind a previous notice of award of a bid to Petitioner First Master Lessors, Inc., on the basis that the original bid was nonresponsive, was appropriate. If rescission of that bid award was proper, a secondary issue is whether Respondent was also justified in rejecting the competing bid submitted on behalf of Petitioner DSJ Realty Company Inc.
Findings Of Fact Respondent issued an Invitation To Bid in order to obtain a leasehold of 15,397 square feet of office space to house operations of its child support enforcement office in Lakeland, Florida, for a term of seven years with an option to renew the lease for two additional three year periods. The Invitation To Bid (ITB) states Respondent's reservation of the right to reject, if in the best interest of the State of Florida, any and all bids. Further, the invitation states a number of conditions that submitting bidders must meet in order for their bids to be deemed responsive. Among the stated conditions is the requirement that bids be submitted on the standardized bid submittal form enclosed in the ITB in compliance with conditions specified on that form. Further, bidders are directed to complete the bid submittal form providing acknowledgements requested by the form. Another stated condition of the ITB is the requirement that a bidder be the owner of record of the facility and parking areas offered for lease; or, if a lessee seeking to sublease, submit with the bid proposal documentation of authority to sublease the facility and parking areas. A further ITB condition requires each bid to be signed by the owner, corporate officers or legal representative of the bidding entity. Corporate, trade or partnership titles of the bidding entity are to be stamped or typewritten beside the actual signature. Bid submissions signed by an agent are required to be accompanied by written evidence from the owner of record documenting the agent's authority. All bid submittal signatures are to be notarized. Page 4 of the standardized bid submittal form enclosed in the ITB requires, in paragraph 11, that any bid offering premises for consideration (including parking areas), which are presently occupied or which will covered by other active leases on the anticipated lease effective date, must be accompanied by documentation executed by those tenants indicating their acknowledgement of the bid and their ability to vacate the premises by the proposed lease effective date. Submitting bidders are required to indicate whether this requirement is applicable to their bid. Page 4 of the standard bid submittal form contains a number of other conditions which require agreement by the submitting bidder. Proof of the bidder's agreement to those conditions is to be documented by the bidder's initials on each page of the bid submittal package and the bidder's notarized signature on page 16, the submittal form's concluding page. Among the conditions on Page 4 of the form is the agreement of the successful bidder to provide leased space to Respondent for exclusive use on a 24 hour basis, seven days per week during the term of any lease resulting from the bid. This condition further explicitly states that the space to be leased will be fully occupied during normal working hours of 8 a.m. to 5 p.m. during the week and may be fully or partially occupied at other times as necessary in Respondent's discretion. Respondent's bid request specified that bidders must offer a minimum of 65 parking spaces in conjunction with premises proposed for lease. Of those spaces, two spaces were required to meet requirements of accessibility for handicapped parking. Of the remaining spaces, 52 spaces were required to accommodate full size automobiles. All parking was required to be provided as part of the lease cost to Respondent and under the "control of the bidder, off street, suitably paved and lined." On May 16, 1989, five bids were opened, including those submitted on behalf of Petitioner DSJ Realty Company Inc. (DSJ), and Petitioner First Master Lessors, Inc. (MASTER). Out of the five bids opened, only the bids of MASTER and DSJ were determined to be responsive. After evaluation of the bids by Respondent's personnel, the bid was awarded to MASTER on July 6, 1989. On July 11, 1989, and in response to the award to MASTER, a notice of intent to protest the award was filed by counsel for Dale S. Jones, as trustee; DSJ; and Elizabethan Development, Inc. (ELIZABETHAN). By letter dated July 12, 1989, Alan Taylor filed a protest of the lease award to MASTER. That letter simply stated its efficacy as a protest with the words "[w]e hereby protest the award of lease # 590:2087 to First Master Lessors, Inc." No particular factual or legal basis for the protest was stated. Taylor is associated with ELIZABETHAN and his letter is typed on stationary of that business entity. Taylor, designated the bidder on page one of the DSJ bid submittal, was authorized to act solely on behalf of DSJ in the submission of its bid by its president, Dale S. Jones, Jr. Documentation of that authority is contained in a May 8, 1989 memorandum attached to the bid package. There is no documentation in the bid submittal package of DSJ that Taylor was empowered to act on behalf of ELIZABETHAN, or that ELIZABETHAN was authorized to act on behalf of any entity in regard to the bid submittal. While not set forth in the bid package, testimony at the final hearing establishes that Jones is the sole owner of DSJ. Subsequent to the filing of the DSJ protest, Respondent determined to reject the bids of MASTER and DSJ as nonresponsive. By letter dated August 28, 1989, Respondent informed both counsel for DSJ and MASTER of this decision. As set forth in the August 28, 1989 letter, Respondent's decision to reject the bid of DSJ was based upon the failure of DSJ's bid submittal to reflect that its agent, Alan Taylor, or the proposed lessee designated in that bid submittal, DSJ Realty Company, had control of the property offered for lease to Respondent. The August 28, 1989 letter also stated Respondent's rejection of MASTER's bid due to a lack of control of the property sought to be leased, specifically control over parking spaces to be provided in conjunction with the premises to be leased. MASTER's bid submittal stated that the bid requirements in paragraph 11 of the bid submittal form requiring documentation of acknowledgements by any existing tenants of the premises (including parking areas) offered for lease, and ability of those existing tenants to vacate the premises, was not applicable. In response to the bid requirement for 65 parking spaces, MASTER's bid proposed 17 "exclusive" spaces on site and 48 "nonexclusive" spaces off site. An attachment to the bid response was a copy of a letter dated June 10, 1983, from the First Christian Church to a predecessor of MASTER, First Bank of Lakeland. The church, located across the street from the site proposed to be leased to Respondent by MASTER, granted "permission to the First Bank of Lakeland to use our parking lot for the convenience of their employees." Subsequent to the opening of bids and receipt of DSJ's bid protest, MASTER provided Respondent with another letter from the church reciting permission for MASTER to use 48 spaces within the church parking lot for the parking of Respondent's employees and clients, provided that the church reserved the right to use those spaces at any time upon the giving of one week's written notice to MASTER. The church also reserved the right to cancel the agreement at any time upon the giving of 60 days written notice. The letter was dated May 15, 1989. Also, as established at the final hearing, yet another letter was sent to MASTER's authorized agent from the church. That letter documents the rejection by the church of any "formalization" of a reciprocal parking arrangement with regard to the premises proposed to be leased by MASTER. However, the letter, dated July 20, 1989, restated the church's consent to the use of the parking lot by tenants of the premises proposed for lease by MASTER in accordance with its previous letter of May 15, 1989. Another letter attached to the bid submittal of MASTER, is also dated May 15, 1989. Directed to Respondent's facilities services manager, this letter is signed by an individual named Geneva Pettus as "[a]gent for First Master Lessors, Inc." The letter signed by Pettus references the 1983 letter from the church and states in pertinent part: We further guarantee your parking requirements during the term of the lease and will accommodate such spaces either within our own building or other locations if changes in the above parking facilities should occur. The MASTER bid submittal contains no documentation of authority of Geneva Pettus to act as agent for MASTER. Further, as established by the proof at final hearing, the vast majority of on site spaces controlled by MASTER are leased to present tenants or their employees. Remaining unencumbered parking spaces are inadequate to meet Respondent's bid requirements. The "guarantee" by Pettus, absent her lack of authorization to act for MASTER, is further invalidated by failure of MASTER to provide acknowledgements, as required by paragraph 11 of the bid submittal form, from the existing lessees of those parking spaces controlled by MASTER which would have to be vacated in order to comply with bid requirements. The proof establishes that MASTER did not have control of a portion of the property submitted for lease consideration by Respondent, specifically the proposed parking areas. Such lack of control is nonresponsive to Respondent's bid requirements. Notably, the May 15, 1989 date of Pettus' letter coincides with the May 15, 1989 letter to MASTER from the church. Respondent's facilities service manager, involved in evaluation of the bid submittals, was understandably concerned that this letter's existence was not disclosed to Respondent's personnel prior to August 17, 1989. The position of the church as reflected in the letter caused Respondent's personnel to reevaluate the issue of whether MASTER's bid demonstrated the requisite control over the property submitted for bid consideration and concluded that such control was absent. The DSJ bid submittal contains the notarized signature of Dale S. Jones, Jr., in the space on page 16 reserved for the signature of the bidder. His signature is followed by the title "PARTNER." That term is not further described, nor is a partnership or connection of that partnership with Jones identified in the bid package. At the final hearing, Jones confirmed his signature. However, the proof fails to establish that the required initials on each page of the DSJ bid package are those of Jones. Jones was unacquainted with the bid package submitted on his behalf, having merely looked through the package before affixing his signature. Further, the bid submittal form, on page 16, has a blank space for insertion of the name of the bidder submitting the bid package. The bid package submitted on behalf of DSJ contains no name in this portion of the submittal form. Page 16 of the bid submittal form also requires that the bidder indicate the name of the entity in whose name the subsequent lease is to be written, if that entity is one other than the bidder. The bid, signed by Jones and submitted by Taylor on behalf of DSJ, contains the statement that any future lease resulting from the bid should be titled in the name of "DSJ REALTY COMPANY as managing and Leasing Agent for Crystal Lake 301 and 302 Joint Venture." Also attached to the DSJ bid submittal package is a copy of an instrument entitled "DEED TO TRUSTEE UNDER TRUST AGREEMENT." By terms of that instrument, the fee simple title to the property and appurtenances of the site of the building proposed to be leased by DSJ, was purportedly conveyed to Dale S. Jones, Jr., as "Trustee under Land Trust Agreement dated June 15, 1987". By terms of the deed, Jones is granted specific authority to convey, lease or otherwise exercise those rights to property which are commensurate with ownership. The grantor of the deed, dated July 7, 1987, is Florida Southern College. The bid package of DSJ contains no documentation that either Jones or DSJ is authorized to act as an agent on behalf of "Crystal Lake 301 and 302 Joint Venture." Further, the bid package of DSJ offers no explanation as to the identity of this entity. As established by Jones' testimony at hearing, the entities "Dale S. Jones, Trustee" and DSJ Realty, Inc., are not interrelated businesses. The DSJ bid submittal further contains no documentation of authority for ELIZABETHAN or Taylor to act as an agent on behalf of "Crystal Lake 301 and 302 Joint Venture." It is found that the bid submittal of DSJ is nonresponsive to the requirements of Respondent's ITB. In response to Respondent's letter rejecting the bids of Petitioners, counsel for both parties filed petitions dated September 8, 1989, protesting the decision and requesting administrative proceedings. The petition filed on behalf of DSJ, ELIZABETHAN, and Dale S. Jones, as Trustee, was entitled "PETITION FOR FORMAL HEARING AND FORMAL BID PROTEST" and alleges the submitting bidder to be ELIZABETHAN. The document, in support of the July 12, 1989 protest of the bid award to MASTER, sets forth specific grounds for that protest. Further, it is alleged in the petition that DSJ was appointed to act as the agent of Dale S. Jones, as trustee, in appointing ELIZABETHAN as his agent. It is found that these allegations, with regard to the identity of the submitting bidder, are not supported by any competent substantial proof; that Dale S. Jones, as trustee was not a submitting bidder; and that ELIZABETHAN was not a submitting bidder. Each petition filed in opposition to Respondent's August 28, 1989 rejection letter, was accompanied by a $5,000 cashier's check payable to Respondent. MASTER subsequently substituted this check with a surety bond. DSJ's July 12, 1989 protest of the bid award was not accompanied by any bond.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered finding the bids of MASTER and DSJ to be unresponsive; finding the cancellation of the award to MASTER to be justified; dismissing ELIZABETHAN and Dale S. Jones, as trustee, as petitioners in this proceeding; and rejecting all bids. DONE AND ENTERED this 14th day of November, 1989, in Tallahassee, Leon County, Florida. DON W. 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 14th day of November, 1989. APPENDIX The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner Master's Proposed Findings. Petitioner MASTER's proposed findings consisted of 21 pages encompassing unnumbered paragraphs dealing with an intertwined mixture of legal conclusions, argument and proposed factual findings. Therefore, MASTER's submission cannot be treated by the Hearing Officer in this appendix on an individualized basis for each proposed finding. However, MASTER's submission has been reviewed and addressed, where possible, by the findings of fact set forth in this recommended order. Otherwise, all disputed issues of material fact have been addressed by the evidence adduced at the hearing held in this cause. Petitioner DSJ's Proposed Findings. Addressed in substance, remainder rejected as unnecessary. Rejected, unsupported by the evidence. Addressed in substance. Rejected, unnecessary to result. 7.-1I. Adopted in substance. Rejected, unsupported by the evidence. Addressed in substance. Adopted by reference. Adopted in substance. 16.-21. Not relevant inasmuch as Jones, in an individual capacity or the legal capacity of trustee or partner, was not a bidder. 22.-23. Adopted in substance. Rejected, legal conclusion, relevancy. Addressed in substance. 26 Rejected, not supported by the evidence. Taylor was authorized to act on behalf of DSJ Realty, Inc., by the corporate president. 27.-28. Rejected, not supported by the evidence; no evidence that Jones was a bidder. 29.-32. Rejected as unnecessary in view of result. 33.-42. Adopted in substance. Respondent's Proposed Findings. 1-12. Adopted in substance. COPIES FURNISHED: Jack E. Farley, Esq. Department of Health and Rehabilitative Services 4000 West Buffalo Avenue 5th Floor, Room 500 Tampa, FL 33614 Gregory L. Coler Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 John Miller, Esq. General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Sam Power Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Bruce Marger, Esq. 1700 66th Street, North Suite 501 St. Petersburg, FL 33710 David H. Simmons, Esq. 120 South Orange Avenue P.O. Box 67 Orlando, FL 32602 =================================================================
Findings Of Fact Prior to April 1987, the Department of Corrections (DOC) determined that it needed 2,300 square feet of office space for its parole and probation office in Santa Rosa County, Milton, Florida. Since the desired square footage of the office was more than 2,000 square feet, DOC was required to seek competitive bids for the proposed office. Towards that end, Wendell Beall, Region I Budget Manager for the Department, prepared a Request for Proposal and Bid Proposal Submittal Form package on lease number 700:0378. This package contained various specifications for the type building DOC wished to lease, as well as weighted, bid evaluation criteria and the numerical points given to each of those criteria. The desired initial term of the lease was five years with an option to renew the lease at the end of the primary term for three years. On April 2, 1987, DOC held a pre-proposal conference for lease number 700:0378 in the Probation and Parole Office in Milton, Florida. The purpose of the meeting was to hand out the Request for Proposal and Bid Proposal Submittal Form package and to answer any questions interested parties may have regarding the bid and bid package. Both Petitioner and Jay Mortgage Co. (the ultimate successful bidder) were present through their representatives. At the pre-proposal conference, the area within which the leased premises must be located was questioned. Specification A.3 defined the area for the leased premises by referring to a map of Santa Rosa County. Normally, such a map would have the acceptable area delineated by a circle or a boundary line drawn on the map. No such delineation was on the Santa Rosa map. Therefore, a more precise definition of the mandatory acceptable area was sought by the potential bidders. Mr. Beall explained that the meaning to be attributed to specification A.3 was that any building within five to ten minutes of the courthouse would be acceptable, i.e., responsive. At this time, no mention of the relative points to be given a location closer to the Courthouse vis. a location farther away was discussed. The enumerated bid evaluation criteria allowed ten points for "location as to clients served" and zero points for "location as to other Department activities." Also at the preproposal conference Mr. Beall reminded those present of the importance of complying with the handicapped requirements. Handicap compliance was stressed because the present landlord could not meet those requirements. He also cautioned all bidders to initial all applicable spaces on the bid submittal form. He further explained that the weighted evaluation criteria in the bid submittal form were the means of ranking the proposals on a point system for purposes of comparison of the respective bids to be submitted. Mr. Beall described the ranking system he preferred as an example of how the individual bid committee members might evaluate the bids. That system was to take the total number of points for a given evaluation criteria, divide by the number of proposals submitted to yield the deduction to be given a building of lesser quality under that criteria. The bids submitted were to be reviewed and graded by a lease committee. The lease committee was not bound by Mr. Beall's preference in awarding or deducting points under a given bid criteria. The individual members could develop their own ranking system based on their best judgment. On April 16, 1987, three bids were received by DOC. The bids were opened at the Probation and Parole Office in Milton, Florida. At that time, Mr. Beall checked the last page of each of the three bids timely submitted, read the first year rental rate per square foot, checked for the bidder's signature and the required attachments on each. The bids were submitted by Jay Mortgage Co., the apparent low bidder, Northrup Building Partnership, the apparent second lowest bidder, and D & C Partners, the apparent third lowest bidder. Mr. Beall accepted the three bids and stated that they appeared to be in order and that he would present them to the lease committee who would then make the final award. On May 14, 1987, the Region I lease committee met. The committee consisted of T. H. Young, Dura Williams, and W. E. Beall. Prior to said meeting, Wendell Beall reviewed all of the bids and transferred appropriate information to a Bid Synopsis sheet. On the synopsis sheet he proposed preliminary point assignments for the three bids under the evaluation criteria set forth in the bid package. Further, Mr. Beall reflected on the synopsis sheet that Petitioner had failed to initial Specification A.12(a), acknowledging the requirement that the leased premises comply wish the State's requirements for Handicapped Facilities. At the lease committee meeting, each of the bid packages were reviewed. The committee decided that the Petitioner's bid and the D & C Partners bid were non-responsive because of the bidders failure to acknowledge (initial) certain bid specifications. Beyond a rudimentary discussion of the rejected bids they were not considered further by the lease committee. The point awards proposed by Mr. Beall were not utilized. Only the Jay Mortgage bid was determined responsive by the committee. Jay Mortgage, therefore, was deemed to be the lowest and best responsive bid by default and was awarded the lease. Petitioner's bid was found to be nonresponsive because Petitioner had inadvertently failed to initial Item A.12(a). The committee felt that Petitioner's failure to initial Specification A.12(a) was material and could not be waived as a non-material item even though some of the committee members were aware that Petitioner's proposed building already had handicap facilities in place at the time the members inspected Petitioner's property. The evidence demonstrated that it was the lack of the initials and not the actual compliance with the specification that the committee found material. The committee felt it could not look to outside evidence or promises of compliance from Petitioner. However, the committee did accept such promises from Petitioner regarding the floor to ceiling walls which did not exist at the time of inspection, but were promised by Petitioner. It is difficult to see how the committee may look behind the bid proposal in one instance and refuse to look behind the bid proposal in another instance. Such inconsistency can be nothing but arbitrary on the part of DOC. This is especially true since the lack of initials was an oversight on Petitioner's part, and the absent floors and ceilings were promised but not present and the handicap facilities were a concrete reality. Moreover, petitioner had initialed in no less than two other places in the bid package specifications requiring compliance with all federal and state requirements and any space requirements of DOC. 1/ The redundancy of the bid package in this regard renders the lack of initials on specification A.12(a) immaterial. In essence, the department was assured at least twice that continuing compliance with the State's handicap requirements would occur. To refuse to waive such a minor deficiency on these facts is arbitrary and capricious. Such an immaterial item should have been waived by DOC and the Petitioner's bid should have been considered and compared to the Jay Mortgage bid. Since the bids submitted by Petitioner and Jay Mortgage, Co., were not compared by the lease committee, but were challenged as to who submitted the lowest and best bid, that comparison is now ripe for decision in this de novo review of DOC's action. The first relevant bid evaluation criterion deals with the comparative rental value for the initial term of the lease on the two bidders' properties, reduced to present value. Seventy points were awardable for this criteria. In this case, Petitioner was the lowest bidder on the initial lease term by 78 cents per square foot. The victory in the primary term was only achieved by Petitioner in the first three years of that term. In the last two years of the primary term, Jay Mortgage Co. was lower, but not by enough to offset Petitioner's lead. Petitioner was, therefore, lower by at least a minimal amount and to that extent would be the better bid. The difference, however, should only be reflected in a minimum deduction of two points from Jay Mortgage Co. /2 The awarded points should, therefore, be seventy points for Petitioner and 68 points for Jay. The second relevant criterion was the conformance of the building space to efficient utilization and layout. Two points were awarded for this criterion. Both bidders adequately met this criterion. Therefore, the maximum of two points should be awarded to each bidder. The third relevant criterion was for street level parking space. Ten points were awardable under this criterion. In this instance, a minimum of fifteen off-street parking spaces were required by DOC. Both bidders met this minimum requirement. However, the evidence demonstrated that Petitioner offered considerably more parking space at its location. The evidence further demonstrated that DOC experienced periods when it conducted an unusual amount of business with its clients, requiring more parking than usual. In that respect, Petitioner offered the better property. However, the probation offices unusual requirements occurred about once a month for only two or three days. Therefore, a minimum difference of one point should be deducted from Jay Mortgage. The awarded points should, therefore, be ten points for Petitioner and nine points for Jay. The fourth relevant criterion was the proximity of the lease site to the clients served by the parole and probation office. In this regard, the evidence clearly demonstrated that Petitioner had the better location for the county-wide area serviced by Petitioner. Respondent's main business was the supervision of probationers and community controllees. Most of this "service" is conducted by DOC at its office or county-wide in the field. Petitioner clearly has easier and better access to its location than the downtown location offered by Jay Mortgage, Co. Therefore, Petitioner's location would be far more proximate and convenient to the probation offices clients than would the downtown location offered by Jay Mortgage. At the hearing, DOC felt that the preferential location under the fourth criterion was the location closest to the courthouse because some of the probation officer's work must be done at the courthouse and an officer may be summoned to the courthouse at any time by a judge. Therefore, a building within walking distance of the courthouse such as Jay Mortgage's building was more convenient for the probation office's personnel as compared to one which requires driving to the courthouse, such as Petitioner's building. The reasons given by DOC for their selection of Jay Mortgage under the fourth criterion at the hearing do not fall within a reasonable interpretation of "proximity to clients served by the Department." DOC's reasons would fall under another separate evaluation criterion. The criterion which would approximately cover DOC's reasons deal with the proximity of the offered space to the other activities of the Department. These "other" activities would include attendance at court for probation revocation hearings or for sentencing of offenders. "Convenience for the personnel" is relevant under these other activities and there is no question that "convenience for the office personnel" is a valid reason for distinguishing between bidders. However, the evaluation criterion which covers these reasons was assigned zero points. DOC cannot go outside its bid criteria. Therefore, no distinction can be made between the bids based on the above grounds. The only points awardable are the ten points assigned under the fourth relevant criterion outlined in paragraph 14 above. DOC's reasons do not fall within the fourth criterion. No other evidence was presented by Respondent to support a preference for Jay Mortgage Co. over Petitioner under the fourth criterion proximity to clients. Petitioner presented evidence which clearly demonstrated that it was the better bid under the fourth criterion. The difference between the bids is significant since client service is the DOC's main business. The only formula available for rating the value of the difference is Mr. Beall's. Therefore, utilizing Mr. Beall's methodology, the points awardable for the fourth relevant criterion should be ten points for Petitioner and seven points for Jay. The fifth relevant criterion was for moving costs. No evidence was submitted by Petitioner or Respondent as to this criterion. Therefore, no conclusions can be drawn about the effect of such costs. No points should be awarded under this criteria. The sixth relevant criterion dealt with the option period rental rate. Six points were awarded for this criterion. Jay Mortgage Co. was the lower of the two bids. The actual difference between the two bids was approximately 25 cents a square foot. That difference appears in the last year of the option term. 3/ In the first two years of the option term the bidders reflect the same rental rate. Since 25 cents is a minimal difference only a minimum deduction of one point should be made. 4/ Therefore, the points awardable for the sixth relevant criterion should be six points for Jay and five points for Petitioner. The overall result would be as follows: CRITERIA PETITIONER JAY MORTGAGE CO. 1. Basement 70 68 2. Space 2 2 3. Parking 10 9 4. Clients 10 7 5. Moving Costs 0 0 6. Option Rent 5 6 TOTAL 97 92 As can be seen from the above table, Petitioner submitted the lowest and best responsive bid under a consideration of all the weighted evaluation criteria established by DOC. Petitioner should, therefore, be awarded the bid.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner be awarded the lease contract as the lowest and best responsive bid. DONE and ORDERED this 21st day of December 1988, in Tallahassee, Florida. DIANE CLEAVINGER 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 21st day of December 1988.
The Issue The issue for determination in this case is whether the Respondent Wayne E. Belton violated Section s. 475.25(1)(b), Florida Statutes (1979), by inserting an option provision into a lease agreement without the specific authorization of the tenants and subsequent to the tenants signing the original agreement. At the hearing, Petitioner's Exhibits 1-10 were offered and admitted into evidence. Leslie and Glenn Strickland, the tenants and complainants, testified on behalf of the Petitioner. Wayne Belton testified on his own behalf. Proposed Recommended Orders have been submitted by the parties. Those findings not incorporated in this Recommended Order were not considered relevant to the issues, were not supported by competent and substantial evidence or were considered immaterial to the results reached.
Findings Of Fact The Respondent Wayne E. Belton is a licensed real estate broker with his principal place of business at 337 Northeast Second Avenue, Delray Beach, Florida. On or about November 23, 1979, the Respondent prepared a one-year rental agreement or lease for property located at 2717 Southwest Sixth Street, Delray Beach, Florida, which was owned by Mrs. Margaret Finlay. Mr. and Mrs. Glenn Strickland executed the agreement as the tenants. The lease was prepared pursuant to an open listing by the owner for either sale or lease. When the Stricklands signed the original agreement it did not contain any provision concerning purchasing the property in the future through an option agreement. Although the Stricklands had discussed an option agreement with the Respondent, they did not specifically agree to an option agreement which required the deposit of additional monies in escrow which would not be refunded if the option were not exercised. The owner of the property, Mrs. Finlay, was primarily interested in selling the property and demanded that Respondent obtain a binding option from the Stricklands. When faced with the conflicting demands of the tenants and the owner, the Respondent inserted an option provision in the lease agreement after the Stricklands had signed the original lease which did not contain such a provision. When the Stricklands failed to deliver the $1,500 option money required by the option provision, Mrs. Finlay, through her attorney, threatened to take legal action against the Respondent. In response to the owner's demand, the Respondent through his attorney, demanded that the Stricklands pay $1,500 for the option pursuant to the lease agreement. When the Stricklands received the demand letter from Respondent's counsel, they contacted an attorney who eventually settled the matter. The Stricklands were required to expend $138.00 in attorney's fees to correct the problem caused by the Respondent. The Respondent admitted inserting the option provision into the lease agreement after the Stricklands executed it, but denied acting with any intent to alter the agreement contrary to what he believed the parties intended. Rather, the Respondent believed that he was remedying his original omission to conform to what he believed the parties had orally agreed to.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Petitioner enter a final order finding that Respondent Wayne E. Belton violated Section 475.25(1)(b), Florida Statutes (1979) and imposing a reprimand and an administrative fine. DONE and ORDERED this 7th day of June, 1982, in Tallahassee, Florida. SHARYN L. SMITH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of June, 1982. COPIES FURNISHED: Michael J. Cohen, Esquire Suite 101 2715 East Oakland Park Boulevard Fort Lauderdale, Florida 33306 Stephen G. Melcer, Esquire Suite 500 First Bank Building 551 Southeast Eighth Street Delray Beach, Florida 33444 Frederick H. Wilsen, Esquire Assistant General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Carlos B. Stafford Executive Director Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32801 Samuel R. Shorstein Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact Respondent HRS published ITB 590:2306 for existing rental space in the central area of Brooksville, Florida. The bid solicitation specified a bid opening time and date of 2:00 p.m. July 17, 1991. Petitioner and Intervenor timely submitted sealed bids. They were the only two bidders. Neither they nor anyone else timely filed any protest of the bid specifications, and therefore the specifications are not subject to attack in this proceeding. Petitioner received a notice of intent to award the bid for lease 590:2306 to Intervenor by letter from Respondent dated August 27, 1991 and timely filed its notice of intent to protest and formal bid protest. Petitioner accordingly has standing to bring this proceeding. Intervenor is the intended awardee and as such has standing to intervene. Petitioner submitted the property located at 7348 Broad Street, Brooksville, Florida, and showed in his bid submittal form that his proposed property contained 22,500 net square feet, with future expansion of 2,100 square feet available. When Petitioner submitted his bid, it included a floor plan, site plan, and a PUR 7068 form. A PUR 7068 form is a "Public Entity Crime Certification Statement," a sworn statement under Section 287.133(a) F.S. The ITB included two separate requirements for bidders to establish that they have control over the property that they submit to HRS. HRS' purposes in requiring bidders to demonstrate control are to prevent bids based on total speculation, to establish a reasonable expectation that the bidder can meet his obligations if awarded the bid, and to establish a reasonable expectation that the property can be occupied on time. Item 1 on page 3 provides as follows: Control of property - This pertains to both the structure(s) and proposed parking areas. To submit a responsive bid, a prospective lessor must meet one of the following qualifications: a.) Be the owner of record of the facility and parking areas (submit copy of deed). b.) Be the lessee of space being proposed and present with bid, a copy of lease with documen- tation of authorization to sublease the facility and parking areas through the base lease term and all renewal option periods. c.) Submit documentation of an option to purchase the facility and/or parking areas. d.) Submit documentation of an option to lease the facility with authorization to in turn, sublease. Any lease must encompass the entire time period of the basic lease and any renewal option periods as required the state. e.) Submit form PUR. 7068 Sworn Statement of Public Entity Crimes (Attachment H). Page 12 provides, in part, as follows: In order for a bid proposal to be accepted the items 1 through 6 must be included in the bid proposal. Items 7 through 11 must be included, if applicable. [Items 11 and 13 state:] 11. Documentation showing bidder as controller of property. 13. Public Enemy [sic] Crime Certification Statement A pre-bid conference attended by Petitioner made clear that evidence of control and the PUR 7068 form were two different items. Petitioner testified that he attached the PUR 7068 form as his sole basis for evidencing control of the building and parking spaces he submitted for lease, and acknowledged that, in fact, the form did not provide any information with regard to his control of the buildings or parking spaces offered for lease. Petitioner's assertion that his name on some of his site plans, etc. constitutes evidence of control is not persuasive. Such assertion is not in line with the ITB requirements or even common sense. Petitioner Proctor owned the buildings he offered HRS in his bid submittal. Petitioner offered multiple buildings separated by parking areas and driveways. The property offered by Petitioner was to have built an awning- covered walkway between buildings but the walkway would have to be placed through the driveway area of the property. The expansion area for Petitioner's property designated in its bid submittal was composed of approximately 10 gated warehouse units which would be converted to office space. Petitioner had leased a portion of the same premises to HRS for 15 years, and HRS was still leasing that portion at the time of the bid opening. At the time of the bid opening, another portion of the property Petitioner proposed to be leased to HRS was also already rented to other tenants, including a lease to the Florida Department of Labor which was not scheduled to expire until December 31, 1991, one day prior to HRS' proposed first day of occupancy under the ITB. The space leased to the Department of Labor would require some renovation for HRS' use, at least to connect it on the interior with the rest of the building. The remainder of the second, adjacent, building to be rented under Petitioner's bid would require more extensive renovation to create office spaces to meet HRS' needs. In addition to the Department of Labor, Petitioner was also renting space in the second building to a beauty salon, a book store, an office supply store, a clothing store, and a barber at the time of bid submittal and opening and at the time of the formal hearing. These latter tenants were on month-to-month leases. In order to ensure that there would be time for necessary renovations before January 1, 1992 and further to ensure that the property would be available for occupancy on January 1, 1992, the ITB required in the following unequivocal language that all bidders file tenant acknowledgments of the bid/proposed lease with their bid submittal: Existing Tenants: If the offered space or any portion thereof (including parking areas) is at present occupied or will be covered by an active lease(s) at the stated availability date, written documentation by the tenant indicating acknowledgment of the bid and ability to vacate premises by the proposed date must be included with the bid submittal. [Emphasis added] Petitioner submitted no tenant acknowledgments from any of his tenants with his bid to HRS. Even though Petitioner failed to submit evidence of control in the form of a deed and further failed to submit the required acknowledgments from tenants occupying the premises on the bid date, HRS did not immediately disqualify Petitioner's bid as nonresponsive. Instead, HRS evaluated Petitioner's bid simultaneously with Intervenor TCC's bid. HRS relied on old leases in its files and actual knowledge that monthly rent was paid to Petitioner for its own currently leased space, and HRS ignored the absence of tenant acknowledgments with Petitioner's bid. HRS followed this course of action despite the requirement of the ITB on page 7, item 1 under EVALUATION OF BIDS which unequivocally provides: Bids received are first evaluated to determine technical responsiveness. This includes submittal on bid submittal forms, inclusion of required information, data, attachments, signatures and notarization, etc. Non responsive [sic] bids will be withdrawn from further consideration. The portion of the ITB designated, Documents Required To Be Submitted With Bid Submittal For Existing Buildings on page 12, item 4. required bidders to submit "Scale Floor Plans showing present configurations with dimensions." Page 3 of 22, Item 9.(b) further required that, as a part of the bid submittal, bidders were to provide "A scaled (1/16" or 1/8" or 1/4" = 1'0") floor plan showing present configuration with measurements." Contrary to the ITB requirement, Petitioner submitted a floor plan scaled at 1/20" = 1', which also failed to reflect the present configurations with all measurements. Petitioner's scaled floor plan submitted with his bid was prepared prior to the present addition to one building and contained a hand- drawn configuration without accurate measurements for the northwest corner of one building. The term of the lease as shown on the ITB and Bid Submittal Form was 9 and one-half years with an option to renew for 2-5 year renewal periods. At the time of the bid opening on July 17, 1991, the bid submitted by Petitioner failed to have any proposed rental rates shown for "Renewal Options: Option II years 1 through 5." HRS permitted Petitioner to correct or supplement its bid after the bid opening (same date and place) to cover this material omission. Page 6, item 4 of the ITB provided for the property owner or other bidding entity to sign the bid submission. The pertinent part states: 4. Each bid submitted shall be signed by the owner(s) corporate officers, or legal representative(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. ALL BID SUBMITTAL SIGNATURES MUST BE WITNESSED BY TWO PERSONS. [Emphasis appears in ITB] Petitioner Proctor signed his bid submittal in proper person. TCC's bid submittal was signed by Sharon K. Lane, "Executive Director," of TCC Number 3 Ltd. Inc., Intervenor herein. At all times material, TCC Number 3 Ltd. Inc. has been a Florida corporation. At the time of the bid opening, Ms. Lane was TCC's sole shareholder and "all officers." At the time of formal hearing, Ms. Lane remained the sole shareholder, but others had assumed some of the corporate offices. Her status at the time of the bid submittal was sufficient for her to bid on behalf of the TCC corporation and to execute the PUR 7068 form on that corporation's behalf. Intervenor TCC submitted the required PUR 7068 form, but TCC submitted as sole evidence of control an undated, unrecorded "Contract for Sale and Purchase" by and between Hernando Plaza Ltd. as Seller and Intervenor TCC as Buyer, for the property which Intervenor was offering for lease to HRS. The best date assignable to this document is April 29, 1991. It was executed on behalf of Hernando Plaza Ltd. by Edward M. Strawgate and Harold Brown representing themselves as general partners of the limited partnership. TCC's obligation to proceed to closing under the foregoing contract was contingent upon TCC's securing an anchor tenant. However, the contract requires TCC to take steps to secure an anchor tenant. By its terms, TCC may purchase the property with or without an anchor tenant, but the contract requires TCC, in seeking an anchor tenant, to set time limits for the lease arrangement with the proposed anchor tenant which do not necessarily accord with the timing of HRS' bid process. HRS accepted TCC's contract to purchase from Hernando Plaza Ltd., as evidence of TCC's control of the premises offered by TCC for lease, believing it to constitute an option to purchase and the necessary evidence of control as required by the ITB. (See, Finding of Fact 6, supra.) At the time of the bid opening, HRS had no reliable information as to what entity actually owned the property offered by TCC, and TCC had not disclosed to HRS that its contract to purchase the property was with a legal entity other than the record title owner of the property, which record title owner was and is the Victor and Lillian Brown Foundation (Brown Foundation). See, infra. Up to that date, at least, Hernando Plaza Ltd. had represented itself to TCC as the owner of the property. The ITB did not require that an abstract of title be submitted with the bid, and HRS normally does not require an abstract from successful bidders, although the ITB contains provisions for future disclosure from successful bidders. (See, ITB item 5 under Requirements for Bidders to Submit Bids.) Absent some reason to "go behind" facial evidence of control, HRS attempts to protect itself by requiring successful bidders to put up an irrevocable letter of credit for one-half of one percent of the proposed lease rental obligation over the basic lease term as a penalty in the event a successful bidder cannot perform. (See, ITB page 4, item 10.) Hernando Plaza Ltd.'s certificate from the Florida Secretary of State expired December 31, 1981. That fact was advertised and the certificate cancelled July 16, 1982. At that time, Edward M. Strawgate was listed as a general partner and Harold Brown was listed as a limited partner of Hernando Plaza Ltd. Hernando Plaza Ltd. had been administratively dissolved for failure to file its annual report. Subsequent to the time that Intervenor submitted its bid proposal, but prior to formal hearing, Hernando Plaza Ltd. was reinstated by the Florida Secretary of State. Once reinstated, the limited partnership's ability to act related back and validated its prior actions. At all times material, the record title of the property offered by Intervenor TCC for lease to HRS was owned by "Harold Brown, Lillian Brown and Muriel Kahr as Trustees of the Victor and Lillian Brown Foundation." This title is derived from a recorded June 30, 1967 warranty deed from Hernando Plaza Ltd., which deed was admitted in evidence at formal hearing. The warranty deed was not attached to TCC's bid submittal. Neither TCC, the corporation, nor Sharon K. Lane, individually, held any authority as agent to submit a bid to HRS on behalf of the record title owner, the Brown Foundation. There is also in evidence a recorded December 18, 1985 Amendment to Lease between the Brown Foundation and City National Bank. That Amendment to Lease also was not attached to TCC's bid submittal to evidence control of the premises TCC was offering to lease to HRS. That Amendment to Lease also recites that Hernando Plaza Ltd. leased back the subject property from the Brown Foundation by a lease dated June 30, 1967. The June 30, 1967 lease was not recorded, was not part of TCC's bid submittal, and is not in evidence. The December 18, 1985 Amendment to Lease goes on to recite that Hernando Plaza Ltd. has assigned its lessee interest under the June 30, 1967 lease to City National Bank by a March 14, 1978 assignment. There is also in evidence a recorded March 14, 1978 "Assignment of Lessee's Interest in Lease from Hernando Plaza Ltd. to City National Bank." This assignment was not part of TCC's bid submittal. The December 18, 1985 Amendment to Lease goes on to further recite that the Brown Foundation has "agreed to give and grant to [Hernando Plaza Ltd.] an option to purchase the property." The remainder of the December 18, 1985 Amendment to Lease details the terms or conditions of the option to purchase granted by the Brown Foundation to Hernando Plaza. For instance, in order to exercise that option to purchase the subject property from the Brown Foundation, Hernando Plaza Ltd., among other requirements, would have to demonstrate that all the terms of the unrecorded June 30, 1967 lease are "in good standing." One may reasonably infer that "in good standing" would at a bare minimum mean that the rents under the lease are paid current at the time the option is exercised, but what the other terms of the lease might be are subject to pure conjecture. TCC's bid submittal did not include documentation that the June 30, 1967 lease was "in good standing." There is also in evidence a recorded June 7, 1989 Trustee's Deed (quitclaim deed of the trustee's interest) from City National Bank's successor bank/trustee to Hernando Plaza Ltd. The Trustee's Deed also was not attached to TCC's bid submittal. On the date of bid submittal/opening neither TCC, the corporation, nor Sharon K. Lane, individually, held any authority as agent to submit a bid on behalf of Hernando Plaza Ltd. or City National Bank's successor. At formal hearing, TCC submitted an October 24, 1991 written hearsay statement by Harold Brown as Trustee of the Brown Foundation to the effect that Hernando Plaza Ltd.'s December 18, 1985 option to purchase the property from the Brown Foundation was "in full force and effect" and that the June 30, 1967 lease back from the Brown Foundation to Hernando Plaza Ltd. was "in full force and effect and that the lessee is in good standing thereunder." Assuming these items may be considered in this proceeding pursuant to Section 120.58 (1) F.S. as supplementing or explaining direct evidence, they still do not clarify in any way what all the terms of the unrecorded 1967 lease are or that those terms will remain in good standing on the date in the future that Hernando Plaza Ltd. elects to exercise its option, if it elects to exercise its option to purchase the property from the Brown Foundation so that Hernando Plaza Ltd. may, in turn, convey the property to TCC, pursuant to Hernando Plaza Ltd. and TCC's April 29, 1991 contract for sale and purchase. Oddly enough, there is further explanatory hearsay that on October 24, 1991, Harold Brown was a trustee of the Brown Foundation and that he also was the sole limited partner of Hernando Plaza Ltd., although TCC's contract with Hernando Plaza for sale and purchase previously indicated Harold Brown was one of two general partners. Hernando Plaza Ltd.'s option to purchase the property from the Brown Foundation must be exercised by Hernando Plaza Ltd. before Hernando Plaza Ltd. can honor its contract to purchase/sell to TCC. Since there is no record evidence that the June 30, 1967 lease from the Brown Foundation as lessor to Hernando Plaza Ltd. as lessee will be in good standing on whatever future date Hernando Plaza Ltd. attempts to exercise its option with the Brown Foundation, one may only speculate both as to when and if TCC will be able to purchase the property from Hernando Plaza Ltd. TCC has only an option to become owner of the subject property at some unspecified date conditioned upon Hernando Plaza Ltd.'s first successfully exercising its option from the Brown Foundation and further conditioned upon all the terms of TCC's contract with Hernando Plaza Ltd. Apparently, TCC's only recourse to enforce its contract with Hernando Plaza Ltd. is a Circuit Court action for specific performance. TCC also submitted a site plan and floor plan with its bid submittal. The ITB required that offices on outside walls must provide windows. TCC's plans did not reflect windows in two sides of the building, but given HRS' retaining the right to partially design and locate its own halls and offices during the building's renovation, TCC's failure to show windows in the two outside walls is not, in and of itself, a material, disqualifying deviation from the ITB so as to unilaterally render TCC's bid nonresponsive. HRS staff member Donald J. Cerlanek prepared a bid synopsis of each bid. This involved completing a form from the HRS leasing manual which illustrates the characteristics of each of the bids. The bid requirements included evaluation criteria and a maximum amount of points which could be awarded for each criteria item. Five HRS bid evaluation committee members executed no conflict of interest forms. These were: Thomas C. Little Jr., David Thomley, Sylvia Smoot, Harvey Whitesides, and Mary Hawks. All committee members were given copies of the bid synopsis form to use in evaluating the properties submitted by Petitioner and Intervenor. Some of the committee members did not obtain or review the actual bid submissions of each of the bidders, but all of them had access to the bid submissions and read the bid synopsis forms for both Petitioner's and Intervenor's bid submittals. The bid evaluation committee members, except for Mary Hawks, made site visits to the properties submitted by Petitioner and Intervenor. Ms. Hawks essentially acted only as a facilitator or conduit for the evaluations of the other four evaluators as set out infra. The four site evaluators took notes regarding each location. The four site evaluators each assigned numerical weights to each item of evaluation criteria except for the rent and renewal rent portions of the evaluation criteria. Although on their site visits some committee members visiting TCC's site may have seen a color version of an artist's rendering of what TCC's project could look like after renovation was complete, a black and white version of the same artist's rendering was attached to TCC's bid submittal to which all committee members had access, and it is found that this situation in and of itself presented no false or misleading information nor constituted any prejudice to a fair bid process/evaluation. Likewise, although some evaluators discussed expansion prospects with TCC's and/or Proctor's on-site representatives, the evidence is credible and persuasive that each evaluator who visited the sites assessed the projects' respective expansion prospects substantially upon what they saw on each site and had experienced in Proctor's existing facility. The points awarded and reasons for the recommendations of each evaluator who visited the sites were reasonably based on specific needs of HRS. These specific needs of HRS were reasonably articulated by the two evaluators who made on-site inspections and who also testified at formal hearing and were reasonably set out in writing in the written notes of the two other evaluators who did not testify. Thomas C. Little, Jr., testified that he found the Intervenor's property superior as a result of the security problems at Petitioner's locations, the closer proximity of the courthouse, hospital, and health department to Intervenor's property and the superiority of a single building offered by Intervenor versus multiple buildings offered by Petitioner. Additionally, he found the esthetics of Petitioner's buildings lacking and expansion offered by Petitioner limited and was concerned that HRS would outgrow the space due to the fact that their service area is one of the most rapidly growing in Florida. His contemporaneous notes were to the same effect. Sylvia Smoot, also a member of the evaluation committee, testified that she found Intervenor's facility superior based on its proximity to the courthouse, hospitals, and other key locations, and its flexibility of design and concentration of space in one building. She further found Petitioner's location lacking as a result of the three separate buildings, its limited expansion room, and the necessity for redirecting clients between buildings, and the difficulty for elderly and handicapped clients accessing Petitioner's building. Her contemporaneous notes were to the same effect. Evaluators Whitesides and Thomley made substantially similar contemporaneous notes justifying their scoring of the two bidders. Three of the four site evaluators met as a group following the site visits and discussed the properties submitted by Petitioner and Intervenor. All four of the site evaluators made recommendations to accept the property for lease proposed by Intervenor, but they did not all confer and jointly develop a single recommendation to the facilities manager. The points assigned by each of the four site evaluators for the properties proposed by Petitioner and Intervenor were as follows: Evaluation Committee TCC Number Member's Names Proctor's Points 3's Points Thomley 75 98 Little 78 93 Whitesides 74 95 Smoot 80 91 307 377 The rent portion of the evaluation criteria was ascertained by applying present value methodology as set forth in the HRS leasing manual to the annual rents offered by the bidders. The discount factor was 8.32 percent. The present value of Proctor's bid was $1,934,038 and the present value of TCC's bid was $2,028,316. The leasing manual is considered advisory only. It advises present values be made, a determination of the difference in amounts be calculated and a comparison of the difference be made to determine a percentage. Thereafter, the percentage is applied to the maximum amount of points allocated for rent in the evaluation criteria. The lowest present value receives the maximum number of points allocated, and, thus, Proctor was awarded 35 points. TCC received 33 points, based upon the fact that its present value of rent was close to the present value submitted by Proctor. No penalty is imposed to a bidder whose rental amounts is higher than the lowest bidder. No benefit is conferred upon the lowest cost bidder over the next lowest bidder. Mary Hawks, Manager for Administrative Services, Department of Health and Rehabilitative Services, received each of the individual evaluation recommendations from Thomley, Little, Whitesides and Smoot. As a result of travel restrictions placed on the HRS, the four site evaluators and Ms. Hawks, who was also a fifth committee member, did not meet as a group following the site visits although three of the four site evaluators did meet collectively following the site visits. (See Finding of Fact 43-44, supra.) The committee members could have met by telephone conference call but Mary Hawks found it unnecessary to do so because there was such a clear evaluation in favor of Intervenor based on the total composite evaluation scores of 377 for Intervenor and only 307 for Petitioner, out of a total of 400 points. She assigned no points herself but approved their recommendations and forwarded a single recommendation in favor of TCC for ultimate approval by HRS management. Mary Hawks had spoken to the evaluation committee members subsequent to the evaluation and no member had expressed any reservation regarding his/her evaluation or a need to meet to discuss anything additional regarding the bid evaluation. The HRS Intent to Award to TCC subsequently issued. The evaluation process and formula for rent evaluation are not among the more commonly used methods but were reasonable and rational and fairly applied to the bids in this case. No conflict of interest in the evaluation committee members was demonstrated by Petitioner in these proceedings.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Health and Rehabilitative Services enter a Final Order finding that: The bid of TCC Number 3 Ltd. is nonresponsive; The bid of Derick Proctor is nonresponsive; Declining to award the bid for Lease No. 590:2306 to either bidder. RECOMMENDED this 20th day of December, 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 20th day of December, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-5963BID The following constitute specific rulings pursuant to Section 120.59(2) F.S. upon the parties' respective proposed findings of fact (PFOF): Proctor's 74 PFOF: The following PFOF are accepted, except to the extent they are unnecessary, subordinate, or cumulative to the facts as found in the recommended order (RO). Unnecessary, subordinate, or cumulative material has not been utilized: 1-3, sentence 1 of PFOF 4, 5-6, 9, 11-12, sentence 1 of PFOF 13, sentence 1 of PFOF 16, 17-26, sentence 1 of PFOF 29, 30-33, 35-36, sentences 1 and 4 of PFOF 38, 39-41, 44-54, 56-57, 60-61, 63. The following PFOF are rejected because they are not FOF as framed but constitute a proposed conclusion of law (PCOL) or are rejected because they constitute mere legal argument: sentences 2 and 3 of PFOF 4, sentence 2 of PFOF 16, 34, 43. The following PFOF are rejected because, as framed, they constitute mere recitation of isolated, unreconciled testimony or other record evidence or are not supported by the greater weight of the credible record evidence as a whole. However, the subject matter is covered in the RO as proven and supported by the competent, substantial evidence in the record: 10, sentence 2 of PFOF 13, 14- 15, sentence 2 of PFOF 29, sentences 2 and 3 of PFOF 38, 55, 58. PFOF 7-8 are accepted as modified because parts are unnecessary, subordinate, or cumulative to the facts as found and other parts are mere recitations of unreconciled portions of the record and legal argument. The following PFOF are accepted in part but not utilized because parts are unnecessary, subordinate, or cumulative to the facts as found, and other parts are rejected as immaterial to the dispositive issues herein, although correctly quoted from the record: 68-73. The following PFOF are rejected as immaterial or not dispositive: 27-28, 37, 42, 59, 62, 65, 67, 74. The following PFOF are covered in preliminary material: 64, 66. HRS 21 PFOF: The following PFOF are accepted except to the extent they are unnecessary, subordinate, or cumulative to the facts as found in the RO. Material unnecessary, subordinate, or cumulative has not been utilized: 1-4, 6-8, 11-12, 16-19. The following PFOF are rejected because they are not FOF as framed but constitute PCOL or are rejected because they constitute mere legal argument: 5, 9-10, 14-15, 21. The following PFOF are rejected because, as framed, they constitute mere recitation of isolated, unreconciled testimony or other record evidence or are not supported by the greater weight of the credible record evidence as a whole. However, the subject matter is covered in the RO as proven and supported by the competent, substantial evidence in the record: 20. PFOF 13 is accepted as modified to correctly reflect the credible record evidence as a whole. TCC Number 3 75 PFOF: The following PFOF are accepted except to the extent they are unnecessary, subordinate, or cumulative to the facts as found in the RO. Material unnecessary, subordinate, or cumulative has not been utilized: 1-31, 34-38, 42- 45, 47-48, 56, 58-60, 64-69, 71-75. The following PFOF are rejected because they are not FOF as framed but constitute PCOL or are rejected because they constitute mere legal argument: 32. The following PFOF are rejected because, as framed, they constitute mere recitation of isolated, unreconciled testimony or other record evidence or are not supported by the greater weight of the credible record evidence as a whole. However, the subject matter is covered in the RO as proven and supported by the competent, substantial evidence in the record: 33, 40-41, 53-55, 57, 61-63, 70. The following PFOF are rejected as immaterial or as not dispositive: 39, 46, 49, 51-52. PFOF 50 is not a sentence, but the subject matter is covered in the RO as understood. COPIES FURNISHED: Thomas V. Infantino, Esquire Infantino & Berman Post Office Drawer 30 Winter Park, FL 32790 Ralph McMurphy, Esquire HRS District 3 Legal Office 1000 Northeast 16th Avenue Gainesville, FL 32609 B. Gray Gibbs, Esquire Sam Power, Clerk Bette B. Lehmberg, Esquire Department of Health and Suite 800 Rehabilitative Services One 4th Street North 1323 Winewood Boulevard St. Petersburg, FL 33701 Tallahassee, FL 32399-0700
Findings Of Fact The Petitioner, PFO, is a professional corporation organized and existing under the laws of the State of Florida. Petitioner's principal office is located in West Palm Beach, Florida. At all times material to the claims of this case, Petitioner had fewer than 25 full-time employees. At all times material to the claims of this case, Petitioner had a net worth of less than $2 million. On May 22, 1995, the Department provided Petitioner with a clear point of entry to a formal administrative hearing pursuant to Section 120.53(5), Florida Statutes. At that time the Department issued an intent to award the Palm Beach County (Intrastate) CSE contract to a third party. This dispute evolved into DOAH case no. 95-3138BID or "the bid case." The Department was not a "nominal party" in the bid case. A recommended order was entered in the bid case on September 5, 1995. Except for a minor point not relevant to the issues of this matter, the Department adopted the findings and conclusions of the recommended order and entered its final order on December 1, 1995. The final order in DOAH case no. 95-3138BID awarded the Palm Beach County (Intrastate) contract for CSE legal services to Petitioner. Such award was based upon the conclusions that the third party's proposal was nonresponsive and that aspects of the evaluation process were arbitrary. No appeal was timely filed against the final order. Petitioner is, therefore, a prevailing small business party within the meaning of Section 57.111, Florida Statutes. The Petitioner timely filed its request for attorneys' fees and costs in the instant case pursuant to Section 57.111, Florida Statutes. The total amount of attorneys' fees and costs incurred by Petitioner in the bid case was $63,495.25. Of that amount, at least $15,000 was reasonable and necessary for Petitioner to incur in the preparations for, and attendance at, the hearing in the bid case. The solicitation package for the bid case contained mandatory requirements with which all applicants were to comply. The final order in the bid case concluded that the successful applicant had failed to satisfy all mandatory requirements. Its bid was, therefore, nonresponsive to the solicitation. Additionally, the final order determined that the instructions regarding how the proposals were to be evaluated were unclear and that points were inappropriately assigned to the successful applicant. The overall conclusion of the final order found that the Department had acted arbitrarily in the intended award to this third party applicant. All of the material deficiencies relied on in the recommended order and the final order to reach the conclusion that the Department had acted arbitrarily were known to the Department at the time of its initial review and evaluation of the proposals. For example, the Department knew that the applicant had not identified two attorneys who would be expected to perform services under the contract, and had not included certificates of good standing from the Florida Bar for them. Additionally, the applicant had not provided references from three persons as specified in the solicitation package. This was evident upon the opening of the proposal. Nevertheless, the Department scored the nonresponsive proposal and awarded it sufficient points to be the apparent winner among the applicants. An award of attorneys fees' and costs under Section 57.111, Florida Statutes, is capped at $15,000. The agency has not disputed the reasonableness nor the amount of fees claimed in connection with the bid case. The agency has not offered evidence to specify each item of cost or fee in dispute. Discovery requested by the Department sought information for the period September 1995 through January 1996 which included runner logs of Petitioner's counsel, itemized bills regarding another party (not a party to the bid case nor this case), and the deposition of Don Pickett. None of the requested discovery addressed the issue of whether the Department's actions in the bid case were substantially justified. None of the requested discovery addressed facts which the Department had placed in issue by its response to the petition. None of the discovery addressed the issue of whether there are special circumstances which would make an award of reasonable fees and costs unjust. Moreover, the parties have stipulated that there are no special circumstances which would make an award of reasonable fees and costs unjust. No new information pertinent to the claim for fees and costs herein which was unknown to the Department as a result of the bid case proceeding was discovered from the deposition of Don Pickett. No new information pertinent to the reasonableness or amount of the fees claimed was discovered from the deposition of Don Pickett or the other discovery requested. The factual circumstances argued in Respondent's Proposed (sic) Recommended Order, ie. that the agency had relied on findings and conclusions from an unrelated DOAH case in connection with the review of the underlying bid case, were not set forth in the response filed by the agency in the instant case and have not been deemed credible in determining the issues of this case. The proposal submitted by the third party in the bid case was nonresponsive. The Department has stipulated that the award of a contract to a nonresponsive bidder is arbitrary.
