Conclusions Having reviewed the Administrative Complaint, and all other matters of record, the Agency for Health Care Administration finds and concludes as follows: 1. The Agency has jurisdiction over the above-named Respondent pursuant to Chapter 408, Part II, Florida Statutes, and the applicable authorizing statutes and administrative code provisions. 2. The Agency issued the attached Administrative Complaint and Election of Rights form to the Respondent. (Ex. 1) The Election of Rights form advised of the right to an administrative hearing. 3. The parties have since entered into the attached Settlement Agreement. (Ex. 2) Based upon the foregoing, it is ORDERED: 1. The Settlement Agreement is adopted and incorporated by reference into this Final Order. The parties shall comply with the terms of the Settlement Agreement. 2. The Respondent shall pay the Agency $9,000.00. If full payment has been made, the cancelled check acts as receipt of payment and no further payment is required. If full payment has not been made, payment is due within 30 days of the Final Order. Overdue amounts are subject to statutory interest and may be referred to collections. A check made payable to the “Agency for Health Care Administration” and containing the AHCA ten-digit case number should be sent to: Office of Finance and Accounting Revenue Management Unit Agency for Health Care Administration 2727 Mahan Drive, MS 14 Tallahassee, Florida 32308 1 Filed December 26, 2012 3:52 PM Division of Administrative Hearings 3. The six-month survey cycle is imposed and conditional licensure status is imposed beginning on 9/19/2011 and ending on 10/06/2011. ORDERED at Tallahassee, Florida, on this al day of Decente — , 2012.
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review, which shall be instituted by filing one copy of a notice of appeal with the Agency Clerk of AHCA, and a second copy, along with filing fee as prescribed by law, with the District Court of Appeal in the appellate district where the Agency maintains its headquarters or where a party resides. Review of proceedings shall be conducted in accordance with the Florida appellate rules. The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE 1 CERTIFY that a true and correct copy of this Final Order was served on the below-named persons by the method designated on this sh ay of , 2012. Richard Shoop, Agency k Agency for Health Care Administration 2727 Mahan Drive, Bldg. #3, Mail Stop #3 Tallahassee, Florida 32308-5403 Telephone: (850) 412-3630 Jan Mills Finance & Accounting Facilities Intake Unit Revenue Management Unit | (Electronic Mail) (Electronic Mail) Tria Lawton-Russell Jonathan S. Grout, Esq. Office of the General Counsel Attorney for Respondent Agency for Health Care Administration Post Office Box 2011 (Electronic Mail) Winter Park, FL 32790 (U.S. Mail) Cathy M. Sellers Administrative Law Judge Division of Administrative Hearings | Electronic Mail)
Findings Of Fact On March 16, 1989, Respondent sent invitations to bid to actuaries who had been listed by the State of Florida, Department of General Services and with whom Respondent had some familiarity. These invitations pertained to two projects. The first project was one in which Respondent sought the services of qualified actuaries for the rendering of expert services in the area of rating requirements and procedures and the review of rate filings for health maintenance organizations and long term care insurance, Bid 119. The second invitation to bid was associated with the attempt to gain services from qualified actuaries pertaining to the review of health insurance filings, Bid 120. Respondent also gave public notice of the invitations to bid in the two projects that have been described. This notice was given in the Florida Administrative Weekly in its publication of March 17, 1989. On March 17, 1989, Petitioner obtained a copy of the bid materials in Bid 119. On March 20, 1989, he obtained a copy of the bid materials associated with Bid 120. In both Bid 119 and Bid 120 there are set out general conditions which are the same for both invitations. Within the general conditions is found paragraph 5 which states: INTERPRETATIONS/DISPUTES: Any questions concerning conditions and specifications shall be directed in writing to this office for receipt no later than ten (10) days prior to the bid opening. Inquiries must reference the date of bid opening and bid number. No interpretation shall be considered binding unless provided in writing by the State of Florida in response to requests in full compliance with this provision. Any actual or prospective bidder who disputes the reasonableness, necessity or competitiveness of the terms and conditions of the Invitation to Bid, bid selection or contract award recommendation shall file such protest in form of a petition in compliance with Rule 13A-1.006, Florida Administrative Code. Failure to file a protest within the time prescribed in Section 120.53(5), Florida Statutes shall constitute a waiver of proceedings under Chapter 120, Florida Statutes. In furtherance of the opportunity to ask questions concerning the conditions and specifications set forth in the two bid instruments Petitioner, by correspondence received by Respondent on March 20, 1989, submitted a separate list of questions for the two projects, Bid 119 and Bid 120. On March 21, 1989, Respondent offered its answers to the Petitioner. Copies of these questions and answers may be found as Petitioner's composite Exhibit No. 5, pertaining to Bid 120 and Petitioner's composite Exhibit No. 6, pertaining to Bid 119, admitted into evidence. No one took advantage of the opportunity set out in paragraph 5 to the general conditions in each invitation to bid, to dispute the reasonableness, necessity or competitiveness of the terms and conditions of the invitations to bid within the prescribed time frame which is set out in Section 120.53(5), Florida Statutes. That time requirement is to make known objections within 72 hours of becoming apprised of the terms and conditions in the invitation to bid. It was only at the point in time at which Petitioner had been found unresponsive in the two bid circumstances and offered his formal written protest on April 11, 1989, that he attempted to advance claims associated with the reasonableness, necessity or competitiveness of the terms and conditions of the invitation to bid. He made further attempts to criticize those terms within the invitation to bid through presentation at hearing and in the course of the proposed recommended orders. All these efforts were untimely. The significance of Petitioner's failure to timely challenge the terms within the invitations to bid, that is the conditions and specifications, means that the facts in dispute are considered on the basis of whether the Petitioner and others who offered their responses to the invitations to bid have complied with those conditions and specifications as written, not as Petitioner would have them be. Bid 119 was responded to by the Petitioner and Touche Ross & Company. Petitioner's response was timely. By committee review of the responses to the invitation to bid performed by the Respondent and approved by the Assistant Director of Administration, Department of Insurance and Treasurer, one Bruce Brown, a decision was reached to reject all bids. Petitioner and Touche Ross were made aware of this rejection. Petitioner made a timely challenge to the rejection of his bid in accordance with Section 120.53(5), Florida Statutes, leading to the present hearing. Touche Ross did not challenge that decision and did not seek to participate in this hearing, although it was noticed of the pendency of these proceedings. Petitioner and Wakely timely responded to the invitation in Bid 120. The review committee with the concurrence of Mr. Brown found Wakely to be responsive and Petitioner to be unresponsive to the terms of the invitation. Petitioner made a timely request to be heard on this decision by the agency leading to the present hearing. Wakely was noticed of the pendency of this hearing as well as the agency's choice to change from a position of accepting the Wakely bid to one of rejecting all bids and has not participated in the process. The reason why the Respondent has chosen to reject the Wakely bid is based upon its belief that to do so would expedite the process of gaining the actuarial services which it seeks under Bid 120 and based upon some concern that if it sought to contract with Wakely, whom it believes to be the only responsive bidder in Bid 120, it would be met with disapproval by the State of Florida, Department of General Services. This resistance by the sister agency is premised upon the opinion that to contract with Wakely would constitute the use of a sole source contract in a setting in which there are numerous choices of actuaries who might be able to perform the work, and General Services who controls sole source purchases would not allow this. Within Bid 119 are various special conditions. Among those is the stated purpose found in paragraph 1.0 and it says: The Division of Insurance Rating (hereinafter "Division") within the State of Florida's Department of Insurance (hereinafter "Department") is seeking one qualified actuary for the rendering of expert services in the area of rating requirements and procedures and review of the rate filings for Health Maintenance Organizations (hereinafter "HMO") and Long Term Care Insurance (hereinafter "LTC"). It is anticipated that the contract will be effective from April 1, 1989 to September 30, 1989, although the precise dates will be dependent upon the date the contract is signed and the schedules of department personnel. By this Invitation to Bid (hereinafter "ITB"), the Division is requesting interested actuaries (hereinafter "respondent") to review the general and specific criteria outlined in this ITB and to present a bid. Other instructions in Bid 119 at paragraph 3.0 state: Emphasis on each bid must be completeness and clarity of content. In order to expedite the evaluation of proposals, it is essential that bidders follow the instructions contained herein. * * * Bidder shall complete the attached Bid Sheet in its entirety. By affixing manual signature on this bid sheet the bidder states that he/she read all bid specifications and conditions and agree to all terms, conditions, provisions, and specifications. Respondent's Credentials and Capabilities Proposals must include substantial evidence of the ability of the respondent to undertake the work required within the parameters and time frames referenced in this ITB. The respondent must be a member of both the American Academy of Actuaries and the Society of Actuaries. Furthermore, the respondent must convincingly demonstrate his or her expertise in both the HMO and LTC areas. Such demonstration must include at least the following: HMO Significant consulting assignment or other work responsibility involving HMO ratemaking in 1988 or 1989. Particulars must be provided, including the specific work product requested, hours spent on the job, the results of the job, and the respondent's precise role. Convincing evidence of familiarity with the Health Maintenance Organization Amendments of 1988 to the Federal Health Maintenance Organization Act. Such evidence might include a completed or ongoing consulting assignment in which knowledge of the new legislation was critical, an article published on the new legislation, or a speech to a professional organization. Public demonstrations of the respondent's expertise in the HMO area, such as speeches, published articles, positions held in HMO professional organizations, or prior full-time employment by an HMO. Assistance in the preparation of HMO rate filings for review by the Department. Assistance in the preparation of rates for federally qualified HMOs. LTC Significant consulting assignments or other work responsibility involving LTC ratemaking in 1988 or 1989. Particulars must be provided, including the specific work product requested, hours spent on the job, the results of the job, and the respondent's precise role. Public demonstrations of the respondent's expertise, such as speeches, published articles, or positions held in professional organizations relative to LTC (i.e., committee assignments) OTHER The respondent should also include a description of prior work assignments involving consulting or other services to state insurance departments. This prior work need not be restricted to HMO or LTC. Note: Evidence of the respondent's expertise must be verifiable. Referenced consulting assignments must include the name, address, and telephone number of an employee of the client who can verify the nature of the assignment. Copies of published articles must be provided, along with the name and date of the periodical in which it was published. Also, copies of speeches must be provided, along with the name of the organization to which the speech was given, a contract person, and the date of the speech. * * * (f) Respondent's Bid In preparing a bid, the respondent should make sure that he or she has submitted at least the following information: A demonstration that all requirements in the "Respondent's Credentials and Capabilities" section are met; An explicit statement as to the proposed hourly rate; A clear statement that the respondent is able to perform the required tasks in the prescribed time frames, as described in "Specific Work Product Required". Such information must be provided together with the bid sheet provided in Section 11. A suggested format is shown in Section 10. In both bid invitations, at paragraph 4.0 of the special conditions, bidders are reminded that bids which do not meet the mandatory technical requirements set out in 3.0 and its sub-parts will not be considered for selection and that the bids that are deemed responsive will be evaluated on the basis of cost and the award made to the lowest responsive bidder at an hourly rate of charges. Both invitations at Paragraph 4.1 indicate that the state has reserved its opportunities to reject all bids if that is felt to be in its best interest. Paragraph 5.2 of the invitation is a further reminder to bidders that any bidder desiring to file a protest arising out of the invitation to bid shall do so in a setting in which Section 120.53(5), Florida Statutes controls. Another specification found in both invitations at paragraph 10.0 entitled, "Respondent's (referring to the bid respondents) Credentials and Capabilities." Under that category it is stated that it is recommended that the format found on that page in the bid specifications be used in supplying the information needed to respond to paragraph 3.0 of the bid specifications for both invitations. Under that paragraph 10.0 there is a place for the respondent's name, the name of his employer, membership year in the AAA, membership designation in the 50A: FSA and ASA and year the 50A designation was awarded. In Bid 119, beyond paragraph 10.0 are found paragraphs 10.1, 10.2 and 10.3, these paragraphs recapitulate those items and the various sub-parts to paragraph 3.0 and provide space for answers to be given to those inquires concerning the Petitioner's credentials and capabilities. There is a paragraph 11.0 in both invitations entitled "Bid Sheet." It has lines related to the hourly rate, vendor name, name of actuary to render services, mailing address, city, state and zip code, authorized signature both manual and typed, telephone number, and the date of submission. This particular paragraph reminds the bidder that by affixing the signature, this is a verification that all bid specifications and conditions have been read and that the terms and conditions, provisions and specifications are agreed to and that certification is made that the services will be provided at the hourly rates stated. Otherwise the basic format for Bid 120 in terms of special conditions is the same as described for the pertinent paragraphs in Bid 119 that have been set out before with the exception of Paragraphs 1.0, and 3.0 (c). They state the following: 1.0 PURPOSE: The Division of Insurance Rating (hereinafter "Division") within the State of Florida's Department of Insurance (hereinafter "Department") is seeking one qualified actuary for the rendering of expert services pertaining to review of Health Insurance rate filings. It is anticipated that the contract will be effective from April 1, 1989 to September 30, 1989, although the precise dates will be dependent upon the date the contract is signed and the schedules of department personnel. * * * 3.0 (c) RESPONDENTS CREDENTIALS AND CAPABILITIES. Proposals must include substantial evidence of the ability of the respondent to undertake the work required within the parameters and time frames referenced in this ITB. The respondent must be a member of both the American Academy of Actuaries and the Society of Actuaries. Furthermore, the respondent must convincingly demonstrate his or her expertise in rating the filing with the Department the following products: Individual Major Medical Medicare Supplement Long Term care Other types of coverage depending upon the needs of the Department and skills of the respondent. Such demonstration must include at least the following: A high degree of familiarity with Chapter 4-58 of the Regulations of the Florida Department of Insurance. Such familiarity should be demonstrated by the respondent providing evidence that he or she submitted at least twenty- five Health Insurance rate filings to the Department which were approved between January 1, 1988 and February 28, 1989. The consultant should demonstrate familiarity with Individual Major Medical, Medicare Supplement, and Long Term Care policies. Such familiarity should be demonstrated by the consultant providing evidence that he or she submitted at least three filings to the Department in each of those areas which were approved between January 1, 1988 and February 28, 1989. NOTE: Only those filings actually certified by the actuary, as provided in 4-58, may be counted in meeting the above requirements. Bid 120 has paragraph 10.1 that refers back to sub-parts within paragraph 3.0(c) and provides space for answering the request for information concerning credentials and capabilities. In both bids Respondent is critical of the Petitioner for not using the format suggested in the various portions of paragraph 10, in essence filling out the specification sheet in the space provided for the answers which the petitioner would give. Having reviewed these materials associated with each bid invitation, the format idea is not a mandatory requirement, it is a suggested requirement. What is incumbent upon the Petitioner is to comply in substance with the requirements set out in the invitations to bid. In that respect the Petitioner is deficient in a material manner. A copy of the requirements Bid 119 may be found in Respondent's exhibit No. 1 admitted into evidence. Petitioner's response to the invitation to bid in Bid 119 is found within Respondent's No. 4 admitted into evidence. In his statement of credentials and capabilities, Petitioner has not utilized the spaces provided in paragraphs 10.1 through 10.3. Instead he has enclosed a letter that includes a statement of work history and professional experience. Under the category of health maintenance organization, the special conditions of paragraph 3.0(c), there is no statement of a consulting assignment or other work responsibility that would involve HMO rate making in the years 1988 or 1989. Furthermore, there is no convincing evidence of familiarity with the health maintenance organization amendments of 1988 to the Federal Health Maintenance Organization Act. There is no reference to public demonstrations of the Petitioner's expertise in the HMO area to include speeches, published articles, positions held in an HMO professional organization or prior full-time employment by an HMO. While there is an indication of experience in rate review from the regulatory point of view in Florida and Massachusetts, there is no indication as required by the specifications and conditions of the preparation of rate filings to be reviewed by a regulator. Finally, under the category of HMO there is no indication of assistance in the preparation of rates for federally qualified HMOs. In the long term care component of the credentials and capabilities portion of Bid 119, Petitioner has offered no explanation of his background. Under the category "other" Respondent has included a description of prior work assignments involving consulting or other services to state insurance departments. On the other hand he has failed to evidence in more specific terms as the note to paragraph 3.0(c) requires, names, addresses and telephone numbers. A copy of the requirements of Bid 120 may be found in Respondent's Exhibit No. 2 admitted into evidence. A copy of Respondent's reply to the invitation to bid may be found in Respondent's Exhibit No. 5 admitted into evidence. As with the previous Bid 119, in Bid 120 Petitioner did not utilize the space available in writing his answers in paragraph 10.1 which relates back to the requirements for credentials and capabilities as announced in paragraph 3.0(c). Instead Petitioner attached a letter in which he attempts to state his compliance with the requirements of the bid. He sets out comments about his work history and professional experience which do not pertain to rating and filing with the Respondent the products of individual major medical, Medicare Supplement, long term care and other types of coverage depending upon needs of the Respondent and skills of the Petitioner. Within Bid 120 in the requirement for familiarity with Chapter 4-58 Florida Administrative Code Petitioner has indicated some involvement with that regulation. However, he has not shown where he had submitted at least twenty- five health insurance rate filings to the Respondent which were approved between the January 1, 1988 and February 28, 1989. In Bid 120 on the topic of demonstration of familiarity with individual major medical, Medicare Supplement and long-term care policies, Petitioner did not demonstrate that he had submitted at least three filings with the Department in each of those areas which were approved between January 1, 1988, and February 28, 1989. By contrast the Wakely response to the invitation to bid, a copy of which is found in Respondent's Exhibit No. 9 admitted into evidence, has adequately responded to the requirements of the Bid 120 in the areas where the Petitioner has been deficient, as well as other areas. As alluded to before Petitioner has failed to make timely challenge to the conditions and specifications associated with the two invitations to bid. Moreover, while allegations in the formal written protest of April 11, 1989 and further remarks of April 20, 1989 addressed to the Insurance Commissioner, together with the proposed recommended order suggest problems with the conditions and specifications associated with the two invitations to bid, proof at hearing submitted by Petitioner did not confirm these allegations. Except in those areas preferred to in the factual discussion above Petitioner's bid responses are adequate to meet the terms of the invitations to bid.
Conclusions Having reviewed the Administrative Complaint, and all other matters of record, the Agency for Health Care Administration finds and concludes as follows: 1. The Agency has jurisdiction over the above-named Respondent pursuant to Chapter 408, Part II, Florida Statutes, and the applicable authorizing statutes and administrative code provisions. 2. The Agency issued the attached Administrative Complaint and Election of Rights form to the Respondent. (Ex. 1) The parties have since entered into the attached Settlement Agreement. (Ex. 2) Based upon the foregoing, it is ORDERED: 1. The Settlement Agreement is adopted and incorporated by reference into this Final Order. The parties shall comply with the terms of the Settlement Agreement. 2. The Respondent shall pay the Agency $500.00. If full payment has been made, the cancelled check acts as receipt of payment and no further payment is required. If full payment has not been made, payment is due within 30 days of this Final Order. Overdue amounts are subject to statutory interest and may be referred to collections. A check made payable to the “Agency for Health Care Administration” and containing the AHCA ten-digit number should be sent to: Office of Finance and Accounting Revenue Management Unit Agency for Health Care Administration 2727 Mahan Drive, MS 14 Tallahassee, Florida 32308 3. Each party shall bear its own costs and attorney’s fees. Any requests for administrative hearings are hereby dismissed, and the above-styled case is hereby closed. 1 Filed August 2, 2013 9:55 AM Division of Administrative Hearings , 2013. ORDERED at Tallahassee, Florida, on this nat! ay of je a LL Me you abeth Dudek, Secretary Agency for Health Care Administration
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review, which shall be instituted by filing one copy of a notice of appeal with the Agency Clerk of AHCA, and a second copy, along with filing fee as prescribed by law, with the District Court of Appeal in the appellate district where the Agency maintains its headquarters or where a party resides. Review of proceedings shall be conducted in accordance with the Florida appellate rules. The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I CERTIFY that a true and correct copy of this Final Order was served on the below-named persons by the method designated on this 3° day of , 2013. Richard Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Bldg. #3, Mail Stop #3 Tallahassee, Florida 32308-5403 Telephone: (850) 412-3630 Jan Mills Facilities Intake Unit Agency for Health Care Administration (Electronic Mail) Thomas Jones, Unit Manager Licensure Unit Agency for Health Care Administration (Electronic Mail) Christopher A. Parrella, J.D., CHC, CPC, CPCO The Health Law Offices of Anthony C. Vitale, P.A. 2333 Brickell Avenue, Suite A-1 Miami, Florida 33129 (U.S. Mail) Warren J. Bird Office of the General Counsel Agency for Health Care Administration (Electronic Mail) Finance & Accounting Revenue Management Unit Agency for Health Care Administration (Electronic Mail)
The Issue Whether the Department of Transportation can reject all bids on State Project No. 37906-9007?
Findings Of Fact In response to an invitation to bid, petitioner C & S Chemical Company (C&S) submitted a bid, No. 9059-86, offering to undertake complete maintenance operations to ensure Rest Area facilities located on State Road 93 (1-75) in Suwannee and Hamilton Counties are maintained in a safe, attractive, clean and sanitary manner." Respondent's Exhibit No. 1. Invitations to bid were mailed in October of last year, (T.9), and bids were to have been opened on December 2, 1987. C&S's bid price was $14,860.76 monthly or $178,329.12 for the year. By letter dated December 9, 1986, however, the Department of Transportation (DOT) advised C&S that all bids had been rejected, stating that the "Department reserved the right to reject any/or all bids when it is determined to be in the best interest of the Department. Petitioner's Exhibit No. 1. C&S mailed notice of protest the same day it received the Department's advice that all bids had been rejected. C&S's formal written protest took the form of a letter, dated December 18, 1986, in which C&S inquired: [H]ow can the Department of Transportation offend and deprive legitimate contractors of this work by negotiating a Contract with a non-profit organization after the bid prices have been made public knowledge? Petitioner's Exhibit No. 2. In this letter, C&S took the position that DOT should not reject all bids: We feel that if the non-profit organizations are going to get Department of Transportation contracts, they should either bid compet[i]tively with private enterprises, or that certain contracts should be set aside for them well advance of the bidding process. At hearing, Mr. Sperring narrowed or clarified the grounds of the protest when he stated, "I have no objection to the concept of the nonprofit organizations as long as they are set aside," (T.12) before bids are invited. The parties agree that, after bids were solicited, DOT decided to award the contract for Project No. 37906-9007 to intervenor Florida Association of Rehabilitative Facilities, Inc. (FARF), even though FARF never bid on the project. By agreement dated August 21, 1985, the Commission for Purchase for the Blind and other Severely Handicapped designated FARF "the central nonprofit agency of the Commission . . . [and its] sole agent." Intervenor's Exhibit No. 2. The day before, DOT Secretary Thomas E. Drawdy had signed a policy statement proclaiming DOT's intention "to procure commodities or services from qualified nonprofit agencies for the blind or other severely handicapped when feasible unless otherwise restricted by budgetary constraints." Intervenor's Exhibit No. 1.
The Issue Whether the Department of Children and Families’ (“the Department”) intent to award the contract associated with Invitation to Negotiate No. 590:3161 (“the ITN”) to Midtown Centre Office, LLC (“Midtown”) was arbitrary or capricious, irrational, or otherwise contrary to the law.1
Findings Of Fact Based on the evidence adduced at the final hearing, the record as a whole, and matters subject to official recognition, the following Findings of Fact are made: The Parties The Department is the state agency charged with working “in partnership with local communities to protect the vulnerable, promote strong and economically self-sufficient families, and advance personal and family recovery and resiliency.” § 20.19(1)(a), Fla. Stat. (2019).3 Gateway owns a shopping center in Jacksonville, and Midtown has owned the Midtown Office Park in Jacksonville since September of 2019. The ITN The Department posted the ITN on October 9, 2019, in order to obtain leased space in Jacksonville for its ACCESS Storefront (“the Storefront”) and North Florida Customer Call Center (“the Call Center”) beginning March 1, 2021. The Storefront is expected to serve 350 to 400 clients a day and is currently located in Building D of Gateway’s Jacksonville shopping center. The Call Center is currently located in Midtown Office Park’s Brownett Building. The ITN set forth two options for prospective bidders. Option 1 sought a location of approximately 26,585 square feet to house the Storefront and the Call Center for 5, 7, or 10-year lease terms. Option 2 sought one location of approximately 11,091 square feet for the Call Center and a separate location of approximately 15,494 square feet for the Storefront. Option 2 also called for 5, 7, or 10-year leases. 3 Unless stated otherwise, all statutory references shall be to the 2019 version of the Florida Statutes. The ITN specified that the Department would evaluate and rank all submissions deemed responsive to the ITN. Those rankings would serve as the basis for one or more bidders advancing to “the short list” and being entitled to conduct negotiations with the Department. Section V of the ITN indicates that negotiations were to begin after the Department evaluated the initial replies to the ITN. The ITN’s stated goal was to “award a lease that best meets the needs of the State using a flexible, iterative process.” Therefore, the ITN established a process in which the Department had a great deal of flexibility in how it conducted negotiations with the short-listed bidders. For example, the ITN states that the Department “reserves the right to negotiate with all, one or none of the respondents in its sole discretion.” The ITN also states that the Department “has the right, at any time during the process, to reject any and all proposals that are not, in [the Department’s] sole discretion, in the best interests of the State.” The Department reserved “the right to seek clarifications, to request Reply revisions, and to request any information deemed necessary for proper evaluation of Replies.” The Department afforded itself “the right to negotiate different terms and related price adjustments if [the Department] determines that it is in the State’s best interest to do so.” While the ITN provided that “negotiations may be conducted serially by order of ranking or concurrently with all short listed [bidders],” the Department reserved the right to “expand the short list to include additional responsive Offerors for negotiation or change the method of negotiation . . . if it determined that to do either would be in the best interest of the State.” Also, the Department could “[s]chedule additional negotiating sessions with any or all responsive [bidders].” The ITN specified that, after the Department completed the initial negotiation session with the selected short-listed bidders, the Department, “in its sole discretion,” would “determine whether to hold additional negotiation sessions and with which [bidders] it [would] negotiate.” The ITN empowered the Department to “[t]ake any additional administrative steps deemed necessary in determining the final award, including additional fact- finding, evaluation, or negotiation where necessary and consistent with the terms of this solicitation.” Furthermore, any time after the initial negotiating session, the Department could require all responsive bidders to provide additional or revised written proposals addressing specific topics and “[d]ecline to conduct further negotiations with any [bidder].” The Department reserved the right to schedule additional negotiation sessions in order to finalize contractual terms with bidders identified in a Notice of Award. In addition, the Department could reopen negotiations with any bidder at any time prior to executing a contract or terminate negotiations with any or all bidders, regardless of the status of negotiations with those bidders. The Department could “waive minor irregularities when to do so would be in the best interest of the State of Florida.” The ITN defined a “minor irregularity” as a “variation from the terms and conditions of this ITN which does not affect the price of the Offer or give the [bidder] a substantial advantage over other [bidders] and thereby restrict or stifle competition and does not adversely impact the interest of the Department.” The ITN also contained a broad provision providing that: The Department reserves all rights described elsewhere in this ITN. The Department has sole discretion in deciding whether and when to take any of the foregoing actions, the scope and manner of such actions, the responsive [bidder] or [bidders] affected and whether to provide concurrent public notice of such decision. The end of the negotiation process could lead to the Department selecting one or more bidders “to submit a written best and final offer, to memorialize all agreements reached during negotiations and to extend additional benefits to the State.” As for the final selection, the ITN specified that: The [Regional Director] or her/his designee will approve an award that will provide the best leasing value to the State, based on the criteria in Section V.B.2, taking into consideration the recommended award by the negotiating team. In so doing, the [Regional Director] or his/her designee is not required to score the Offerors, but will base his or her recommendation on the criteria set forth above. If the [Regional Director] or his or her designee determines that two or more Replies most advantageous to the State are equal with respect to all relevant considerations, including price, quality, and service, the award will be made in accordance with Rule 60A-1.011, Florida Administrative Code and Section 295.187, Florida Statutes. The ITN set out a “general schedule” detailing key dates in the solicitation process and estimated time periods for when certain events would occur. For example, the initial schedule established December 9, 2019, as the deadline for bidders to submit their replies to the Department. The Department’s evaluators were scheduled to meet on December 16, 2019, and complete their evaluation of the replies. It was “anticipated” that the “short list” of bidders would be announced on December 19, 2019. Then, the “estimated time period for negotiation” would begin on December 20, 2019, and conclude on January 23, 2020. Finally, February 14, 2020, was the Department’s “estimated date for posting” it’s Notice of Intent to Award. During the course of this solicitation, the Department revised its general schedule multiple times via the issuance of addenda. For example, Addendum 3 was issued on December 6, 2019, and delayed by approximately one month all of the events following the opening of the initial replies to the ITN. Addendum 6 was issued on February 7, 2020, and extended the negotiation period with short listed bidders to February 21, 2020. Addendum 7 was issued on February 19, 2020, extending the aforementioned negotiation period to February 28, 2020, and the estimated award date to March 16, 2020. The Department authorized CBRE, Inc. (“CBRE”), the world’s largest real estate company, to act as its representative during the solicitation and negotiations. CBRE helps agencies structure bids so they draw as much interest as possible from prospective bidders. CBRE also assists with assembling the bid documents that agencies post to the State of Florida’s Vendor Bid System (“the VBS”). In addition to ensuring that offers are technically compliant with the terms of an ITN, CBRE handles negotiations with short-listed bidders and facilitates the receipt of the bidders’ BAFOs. CBRE assigned David Hulsey to be its lead person for the ITN, and Charles Johnson of the Department was his designated contact.4 The ITN was posted on the VBS on October 9, 2019. Any bidder objecting to any of the ITN’s terms, conditions, or specifications had 72 hours to file a protest, but no protest was filed. Five prospective bidders replied to the ITN. Gateway submitted two replies, each offering to lease space in Building A of Gateway’s Jacksonville shopping center. As noted above, the Department currently leases space for the Storefront in Building D in the same shopping center. Midtown submitted one reply which proposed leasing space in the Dew Building of its Midtown office park. The Department currently leases space for the Call Center in the Brownett Building of that office park. 4 Mr. Hulsey explained that CBRE does not recommend which bidder should receive the contract: “I don’t recommend anything. We don’t make any decisions. Once we finish with negotiations and test fits, we give that to the agency, and they make decisions and recommendations. We as tenant brokers don’t have the authority to make any decisions. We’re not on the evaluation teams, and we just, you know, that’s not part of the scope of our contract.” When asked if he made any recommendations in the instant case, Mr. Hulsey testified, “Absolutely not. I don’t have that authority, and quite frankly, we don’t care. We represent the state, so if bidder A, B, or C wins, we get paid. I have no inclination to – for one to win over the other. The only thing I care about is whoever wins can they get the funding through traditional lending or private equity, do they understand the scope of work and the cost associated with building out this space.” After receiving replies to the ITN, Mr. Johnson ranked the replies from highest to lowest based on the criteria set forth in the ITN. He then transmitted those rankings and a recommendation about which bidders should make the short list to the Regional Director overseeing the Jacksonville area. The Regional Director or his/her designee then selected the bidders with whom the Department (via CBRE) would commence negotiations. Gateway, Midtown5, and Timuquana Marketplace, LLC (“Timuquana”) advanced to the short list on January 13, 2020.6 Getting BAFOs from Gateway and Midtown The ITN specified that “[p]rior to final negotiation and selection of an Offer or Offers, a ‘test fit’ of the Proposed Space relative to the need may be required, the expense of which shall be borne by [the bidder].” The ITN defined a “test fit” as: the first attempt to show the proposed office space criteria on paper in the form of a preliminary space plan. The test fit determines if you can “fit” into a specific space or how much space you will actually need to build out the space. A test fit ensures that a prospective bidder understands the Department’s needs and will provide exactly what the Department is seeking.7 Even though the ITN stated that a test fit “may be required,” Mr. Hulsey considers test fits to be an essential part of the negotiation process: “I was trying to facilitate test fits, which are the basis for 5 Midtown earned the highest overall score. 6 The subsequent negotiations with Timuquana were not extensive because its proposed lease rates were substantially higher than those proposed by Gateway and Midtown. 7 Charles Johnson, the Department’s contact person for the ITN, testified that a test fit shows “where the seats are, and where the people are going to be sitting. Where . . . rooms are located, restrooms, [and whether the contemplated arrangement is] conducive to fire codes.” negotiations, so that we could get to a final best and final number and feel confident that they could build it out.” Adam Landa, Gateway’s point-of-contact for this bid, contacted Mr. Hulsey about revising Gateway’s offer so that it would be based on Building D rather than Building A. Mr. Hulsey responded via a February 6, 2020, email stating that the Department was receptive to keeping the Storefront in Building D, but Mr. Hulsey still wanted Gateway to submit a test fit: Adam, Per our conversation yesterday afternoon, [the Department] is open to the idea of keeping the store front in their current location at Gateway, with some modifications to the lobby and an expanded area of approximately 3,000sf. [The Department] is requesting that you hire an architect/space planner to complete a “high level” test-fit to show how the storefront and call center fits into the available vacant space adjacent to the service center. If your architect/space planner needs to meet with [the Department], I can set that up. The time period for negotiations ends tomorrow according to the schedule in the ITN; however, we are going to extend that timeframe for a couple of weeks to allow time for the test-fit process. If you have any questions, please contact me. Mr. Hulsey provided Gateway with the names of three architects who could perform the test fit.8 Mr. Hulsey contacted Gateway and Midtown on February 18, 2020, in order to determine when he could expect the first drafts of the test fits that 8 Mr. Hulsey wrote an email to Mr. Landa on February 10, 2020, relaying an architect’s contact information and stating he was “working to find you a couple more to reach out to.” Mr. Landa replied 10 minutes later thanking Mr. Hulsey and saying “[w]e will get right on it.” had been requested. Mr. Hulsey’s February 18, 2020, email to Mr. Landa asked: Any idea when we will see the first draft of a “high level” test fit? No one from [the Department] has been contacted by a space planner or ownership to give their input. We will be reaching the end of the period for negotiations this Friday and then the agency will make their decision. I would assume that you would like for [the Department] to see past the existing conditions before they make their decision. In lieu of a test fit, Mr. Landa submitted via email a “revised site plan” and what he referred to as “attached test fits” on February 18, 2020. Via the same email, Mr. Landa asked Mr. Hulsey to “please confirm if we can extend the negotiations by an additional week.” On February 22, 2020, Mr. Hulsey’s assistant notified Mr. Landa via email that “[t]he addendum to extend the deadline for negotiations on the Jacksonville ITN has been posted to VBS, please find a copy attached. The new deadline date is 2/28/2020.” Mr. Landa then transmitted the following email to Mr. Hulsey and his assistant on February 26, 2020: Per our conversation today, please see attached a revised site plan and proposed rental structure for the two proposed spaces in Building D at Gateway Town Center. Please note that we provided your client an approximate 1,000 square feet of additional space for non-rentable items such as bathrooms, etc. The proposed rentable square feet will be based on your client’s required 26,585 total square feet plus approximately 3%, which comes to approximately 27,382 total square feet. To clarify, [the Department] will be paying gross rent on the basis of its required 27,382 square feet, as seen on the proposed rental structure attached.[9] The documents transmitted by Mr. Landa did not amount to an actual test fit because they did not show how the interior of the spaces would be arranged or anything else contemplated by the ITN’s definition of “test fit.” Mr. Hulsey was frustrated with Gateway’s failure to provide him with a test fit, testifying that: Q: Gateway never provided you with a test fit, did they? A: No. We tried – we tried. I was so frustrated with Mr. Landa that I called David Berger and expressed my frustration. And said, David, I don’t think that Mr. Landa understands what a test fit is, because I asked for a test fit and he sends me a site plan with the vacant space that they have in the center. And I was just pulling my hair out trying to communicate. Q: Okay. And I guess, based on what you just said, would it be fair to say that you really bent over backwards trying to get a test fit from Gateway? A: I went beyond. Above and beyond. If the tables were turned and Gateway was awarded this, Midtown would probably be protesting saying that 9 Mr. Landa also transmitted the substance of this email to Mr. Hulsey via a text message sent on February 26, 2020. I showed favoritism to Gateway, because I helped them get in touch with some architects.[10] In response to an inquiry from Mr. Landa asking if he needed anything else, Mr. Hulsey emailed the following to Mr. Landa on March 6, 2020, well after the February 28, 2020, negotiation deadline: We have everything we need at this point. [The Department] is reviewing all of their options and hope to make an award according to the revised schedule of events in the ITN. If they request additional information, I will reach out to you. 10 Mr. Hulsey had relayed his frustration to David Berger, one of Gateway’s partners: Q: And did David Berger call you during this procurement at all, to your recollection? A: Yeah. If David needed something, you know, he would call; and if I didn’t answer, he would text and say, “Call me,” and I’d text and say, you know, “I’m tied up,” “I can’t,” “I will,” but I would rather have reached out. In fact, when I was not getting the responsiveness that I needed from this Adam Landa, I would call David and say, “David, I don’t know if this Adam guy understands what a test fit is.” I said, “I’ve given him three names of three architects and their phone numbers, which is not my responsibility, but Adam told me ‘We don’t have an architect in Jacksonville.’” So I did his work for him and we still never got a call or meeting setup with the architects. Well, I called David and expressed my frustration that we weren’t getting what we needed because I knew David knew the process because I just finished – he was just finishing up $250,000 in work for DOC. Q: Do you recall when in time approximately those conversations were? Were they before or after the BAFO? A: Oh, before. There’s probably -- I don’t even know how many calls, you know. You – I’d need something, I’d ask for it and ask for it. Finally, I wasn’t getting it, I put it in writing in an email towards the end of February, I guess, you know, “When are we going to get this?” so at least I was on record as asking for it for both properties. I was like, you know, “Come on, Guys, I can’t keep pushing this out more and more. We’re trying to help you both and at some point we’ve got time restraints.” In light of Gateway’s inability to provide the test fit requested by Mr. Hulsey, his decision to effectively cease negotiations with Gateway was justified. Mr. Hulsey had a different experience obtaining a test fit from Midtown. His February 18, 2018, email to Daniel Mehaffie, Midtown’s lead negotiator for this bid, stated the following: Any idea when we will see the first draft of a “high level” test fit? We will be reaching the end of the period for negotiations this Friday and then the agency will make [its] decision. I would assume that you would like for [the Department] to see past the existing conditions before they make their decision. Mr. Mehaffie responded to Mr. Hulsey’s email on February 18, 2020, by reporting that the test fit had revealed a problem with the available space in the Dew Building. Mr. Mehaffie proposed that the problem could be substantially alleviated by reducing the size of the Department’s cubicles: Thanks for speaking with me today. As we discussed, I’d like to extend the deadline 1 week so we should hopefully be able to wrap everything up with the test fit. I’d like to confirm that we are ok to reduce the cubicle size to 6x6 as opposed to 6x8 to save [approximately] 2,000 sf on the 1st floor. Based on John’s visit to the storefront operation, their cubicles are 6x6 so they wouldn’t actually be losing space from their current outfit. Please confirm this will be okay so I can inform our architect who is working on the test fit for us. Mr. Hulsey responded on February 19, 2020, by stating he did not anticipate that a one week extension of the February 21, 2020, negotiation deadline would be problematic. Mr. Hulsey copied Mr. Johnson on the email and asked if he consented to Midway basing its test fit on the Department using 6x6 cubicles. The Department issued Addendum 7 on February 19, 2020, extending the negotiations deadline to February 28, 2020, and the estimated contract award date to March 16, 2020. The terms of the ITN and the greater weight of the evidence demonstrate that the “the initial negotiation session” referred to in the ITN concluded on February 28, 2020. After transmitting a revised test fit for the Dew Building to Mr. Hulsey on February 27, 2020, Mr. Mehaffie emailed Mr. Hulsey on February 28, 2020, stating that “[a]fter deliberating and taking all things into consideration with the owners, we’d like to propose the Dew Building for a 5 yr lease with 3% annual escalations, with a 5 yr option to renew (also with 3% escalations) and a base year price of $20.44.” Midtown’s revised offer presented two issues. The test fit submitted on February 27, 2020, indicated there was still some uncertainty about the Dew Building having enough space to accommodate the Storefront and the Call Center. Also, Mr. Mehaffie’s February 28, 2020, email only offered a 5-year lease option while the ITN requested leases of 5, 7, or 10-year durations. Even though the ITN indicated the Department would be willing to accept a 5-year lease option, Mr. Hulsey encouraged Midtown to offer 7 and 10-year lease options as well. He did so because: [m]y role is, whether or not his initial offer of a 5- year with a 5-year option, if you read the negotiation section in the ITN, yeah, probably would be accepted. But I had been directed to get a 5-,7- and 10-year option. So whether or not the agency accepted this one, I was going to provide for the agency what was requested in the ITN. What they did with it, that’s out of my hand. We don’t make decisions. Mr. Hulsey also felt the Midtown offer was incomplete: I felt like it was incomplete. So, you know, we reach out. People that have not been involved in the ITN process, we are there to assist and facilitate getting the best deal for the State of Florida. And I took as many liberties with Gateway as I did with Midtown to help out. Midtown ultimately realized that leasing the Dew Building to the Department was not going to be sufficiently profitable. Therefore, Midtown transmitted a revised proposal via email to Mr. Hulsey on March 3, 2020, proposing to house the Storefront on the first floor of the Brownett Building while keeping the Department’s Call Center on the Brownett Building’s second floor. The revised proposal included leasing options of 5, 7, and 10 years and the rate per square foot for each year. When accounting for the charges associated with the option years, Midtown’s revised offer made it the lower cost vender for each time period. Even though the Department was already in the Brownett Building and there were no concerns about space given the Brownett Building’s size, Mr. Hulsey still required Midtown to submit a new test fit based on the Brownett Building: With Midtown, I’d never worked with this ownership group, and when they submitted their initial offer they estimated – if you look at their Attachment I where we have the rental rates broken down – they estimated the cost for their construction would be $250,000. We have a half million square feet. I know what it costs, and I didn’t feel comfortable that they had a clear understanding of what this cost was going to be, so I raised the bar for Midtown very high to ensure that they understood the scope of work and that they were going to be required to build it out according to the agency specification. And, you know, the worst thing you can do in the world is get four months down the road with construction documents, lease documents. Time is clicking away, and somebody all of a sudden says, oh, wait a minute, we didn’t realize what this was going to cost, we’re going to have to come back and retrace the deal. We don’t do that. So the more clarity that we can get at the front end, the fewer problems we have at the tail end. A test fit based on the Brownett Building was emailed to Mr. Hulsey and the Department on March 25, 2020. The Department Intends to Award the Contract to Midtown Mr. Hulsey’s assistant transmitted spreadsheets on March 9, 2020, to Mr. Johnson listing the BAFOs for Gateway, Midtown, and Timuquana.11 Mr. Hulsey called him later that day and expressed no preference for any of the BAFOs.12 On March 29, 2020, Mr. Johnson wrote the Notice of Intent to Award the contract to Midtown “in order to establish final contract terms and conditions, to become the lessor of office space for the Economic Self Sufficiency Program.”13 The Department’s Notice of Intent to Award was posted on the Vendor Bid System at approximately 3:30 p.m., on March 30, 2020. Mr. Johnson was very familiar with Gateway’s Building D and Midtown’s Brownett Building because the Department was already leasing 11 The spreadsheets referred to the addresses of the buildings that Gateway and Midtown had originally proposed, Building A for Gateway and the Dew Building for Midtown. However, the greater weight of the evidence established that Mr. Hulsey’s assistant erred by not updating the addresses to reflect the new buildings being offered by Gateway and Midtown. The Department was well aware that Gateway’s final offer was based on Building D and Midtown’s final offer was based on the Brownett Building. 12 Timuquana’s bid was far less desirable than the ones submitted by Gateway and Midtown. As a result, Mr. Hulsey did not request a test fit from Timuquana because he did not want to require Timuquana to needlessly spend money. 13 Mr. Johnson made the decision for the Department to post the Notice of Intent to Award the contract to Midtown. Gateway’s protest brought a halt to the contract award process. those buildings. In light of that unique situation, the non-price evaluation criteria in V.B.2 of the ITN (such as location and parking) were not at issue, and price properly became the key factor in deciding between Gateway and Midtown’s offers: Q: When did you – did you ever make a recommendation to select the Brownett Building? A: Actually, no. This [bid protest] stopped me from it. Q: Do you provide any information on the criteria other than cost to the people in the chain of command who are making the decision? A: No. Not really. I have a contact, a person that I work really closely with in Tallahassee. He’s been around for quite a while. He knows these areas. We were in a unique situation here. We had two top contenders, and we were in both of them. While Mr. Johnson’s decision was largely based on price, he did not ignore the other criteria set forth in the ITN: Q: And when you made your recommendation, you were familiar with both the Gateway shopping center and Midtown, because [the Department] had been renting from them for a number of years, right? A: Both of them, yes. Q: And you had been there, you had done visits. I mean, what might be described as intimately familiar with these locations? A: Yes, sir. Q: And so things such as when you made your recommendation, you were aware of things such as the location, the parking, the facility’s present condition, those sorts of things, you were aware of those when you were making your award decision, weren’t you, sir? A: Yes, sir . . . Q: My point is, rate was very important to you in your award decision, wasn’t it sir? A: Oh, yes. Q: But it wasn’t blind to all of these other factors or criteria, right? You were aware of those? A: Oh, no. If I had not – if I had not been paying one or the other for many years of rent, I would have been looking at it a little differently. You know, if I had no history with them. Q: Okay. And your history gave you knowledge with regard to all of these other factors that you were aware of when you were making your award decision; it that correct? A: Yes, sir. Gateway’s “Hail Mary” Over a month after the deadline for transmitting BAFOs and approximately 15 minutes after the Department posted the Notice of Intent to Award on the VBS, Gateway transmitted an offer to build out Building D and other unused space for $16.00 per square foot on a 5-year lease term. That represented an $8.00 per square foot drop from the lowest rental price proposed in its preceding offer. The March 30, 2020, email from Mr. Landa to Mr. Hulsey stated the following: We have been trying to contact you and [the Department] to review and negotiate our response to ITN 590:3161. Unfortunately, we have been unable to connect, perhaps due to the situation at hand with the coronavirus. Our model has changed due to lowering costs and interest rates, and we have greater flexibility to modify the proposed gross rents and agree to a 5 year lease. We have been trying to meet with you and [the Department] to negotiate gross rental rates in good faith, and we have not received a date/time to do so. We understand that negotiations with us as an offeror [are] contemplated by the Bid Documents. Also, we have not gotten any feedback from [the Department] on our response to the ITN. We are anxious to do so, and we hope [the Department] finds the attached and below revisions to be compelling. I refer you to the attachments to this email. In summary, we propose that the Landlord will be responsible to build out the expansion to [the Department]’s current space and propose that [the Department] pay a gross initial rent of $16.00/square foot on approximately 11,814 square feet. Additionally, we propose that the Landlord will be responsible to build out the approximate 17,793 square feet and that [the Department] shall pay $16.00/square foot gross rent only on the basis of approximately 15,568 square feet. Therefore, the Tenant will have an approximate 2,225 square feet of additional space for free (which would cover non- rentable items such as bathrooms, etc.). So, the Tenant will pay a gross rent on the basis of approximately 27,382 total square feet, which is based on your required 26,585 total square feet plus 3%. As you can see, under our revised proposal, the Landlord will build out both of the Tenant’s spaces, and the Tenant will save in gross rent approximately $1,368,873.86 for the total initial lease term, $4,539,233.58 for the total option term and $5,908,107.44 for the total initial lease term and total option term combined. Testimony from James Goldsmith, a partner and president of Gateway, indicated this offer was an attempt to persuade the Department to reopen negotiations: Q: And how did Gateway’s offer of the D building in this email come about? A: We were – after submitting our Building A, we were expecting to get some negotiation from [the Department]. Not having heard anything, having got an email that they were delayed for COVID, we were concerned that something was going on. We just had an inkling that things were not going right, or our bid was not received well, because we had no negotiation. When someone says they’re going to negotiate with you, you expect them to get back to you. So in an effort to prod the process, I suggested a week or so before, two weeks before, we start working on some numbers and see maybe we can – I don’t know if it was legal or not, or proper, but I would say let’s get to Building A, but if Building A is not going to work for you, here’s what we can do in Building D. And it was just a Hail Mary trying to get him to come to the table, but we didn’t know whether it would be effective or not.[14] As explained in the Conclusions of Law below, Gateway has not carried its burden of demonstrating that the Department’s intended award to Midtown is arbitrary or capricious, irrational, or otherwise contrary to the law. 14 Section 120.57(3)(f), Florida Statutes, barred the Department from considering this final offer from Gateway. The statute provides, in relevant part, that “[i]n a protest to an invitation to negotiate procurement, no submissions made after the agency announces its intent to award a contract, reject all replies, or withdraw the solicitation which amend or supplement the reply shall be considered.”
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Families enter a final order affirming the Notice of Intent to award the contract associated with Invitation to Negotiate No. 590:3161 to Midtown Centre Office, LLC. DONE AND ENTERED this 31st day of August, 2020, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings This 31st day of August, 2020. COPIES FURNISHED: Cynthia J. Miller, Esquire Sweetapple, Broekeer & Varkas, P.L. Suite D306 4800 North Federal Highway Boca Raton, Florida 33431 (eServed) Lacey Kantor, Esquire Department of Children and Families Building 2, Room 204Z 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed) Robert H. Hosay, Esquire Foley & Lardner LLP Suite 900 106 East College Avenue Tallahassee, Florida 32311 (eServed) Benjamin J. Grossman, Esquire Foley & Lardner LLP Suite 900 106 East College Avenue Tallahassee, Florida 32301 (eServed) Mallory Neumann, Esquire Foley & Lardner LLP 106 East College Avenue Tallahassee, Florida 32301 (eServed) William D. Hall, Esquire Dean Mead Suite 815 215 South Monroe Street Tallahassee, Florida 32301 (eServed) Daniel Ryan Russell, Esquire Dean, Mead & Dunbar Post Office Box 351 Tallahassee, Florida 32302 (eServed) John L. Wharton, Esquire Dean, Mead & Dunbar Suite 815 215 South Monroe Street Tallahassee, Florida 32301 (eServed) Cindy A. Laquidara, Esquire Akerman LLP Suite 3100 50 North Laura Street Jacksonville, Florida 32202 (eServed) John A. Tucker, Esquire Foley & Lardner, LLP Suite 1300 One Independent Drive Jacksonville, Florida 32202 (eServed) Lacey Kantor, Agency Clerk Department of Children and Families Building 2, Room 204Z 1317 Winewood Boulevard Tallahassee, Florid a 32399-0700 (eServed) Chad Poppell, Secretary Department of Children and Families Building 1, Room 202 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed) Javier Enriquez, General Counsel Department of Children and Families Building 2, Room 204F 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed)
Findings Of Fact Respondent advertised for bids for work to be performed on the Statewide Regional Juvenile Detention Center located in Pasco County identified as Project Number HRS 85-300000. In response to this advertisements Petitioner and Intervenor timely submitted bids on January 23, 1966. According to calculations performed by Respondent, Petitioner was low bidder and Intervenor was the next lowest bidder. The construction budget for this job is $1.5 million, and both bids are considered by Respondent to be within budget. Depending on the alternatives chosen within each bid, Petitioner's bid is lower than Intervenor's by between approximately $6,000 and $40,000. Section B-14 of the advertisement for bids requires each bidder to submit a list of the subcontractors who will perform work on the job for him and specifies that only one subcontractor shall be listed for each phase of the work. Section D of the advertisement for bids specifies the work areas for which a subcontractor must be listed and states that said list is an integral part of each bid submitted. The subcontracting areas include electrical plumbing, mechanical, roofing security control systems, food service equipment and fire protection. Petitioner's bid was rejected on February 4, 1986, because its bid failed to include a roofing subcontractor's name as required in the advertisement for bids. Petitioner does not dispute that its bid was incomplete when submitted since it failed to identify a roofing subcontractor. However, Petitioner contends this omission was a result of clerical error in typing the bide and that, in fact, it had selected Republic Roofing as its subcontractor. John Breen, Petitioner's project manager, testified that it was his intent to use Republic Roofing when he submitted the bide that he had a firm bid from Republic Roofing, and that when this omission was brought to his attention after bids were opened, he identified Republic Roofing in writing on January 24 and 29, 1986, to Brian Seufert an intern architect working for Respondent's project architect. Seufert confirms Breen's testimony through affidavit jointly filed by the parties. Seufert indicates that the project architect has no reason to believe that Petitioner could not perform the work required by the project. By affidavit jointly filed by the parties, Joyce Kleja secretary for Petitioners also supports Breen's testimony about her clerical error in omitting the roofing subcontractor when she typed the bid. Ray Scerbo, an estimator for Republic Roofing, disputes the testimony of Breen through jointly filed affidavit. Scerbo indicates it was not until a couple of days after the bid opening that he was told by Petitioner that Republic Roofing "had the job" if Petitioner was awarded the contract. This conflicts with the first written notice from Breen to Seufert dated January 24, 1986, as well as Seufert's affidavit that Petitioner told Seufert on January 24, 1986, that Republic Roofing had been selected. Scerbo is no longer employed by Republic Roofing. After considering all of the evidence, it is specifically found that Petitioner's omission of Republic Roofing from its list of subcontractors was through clerical error and that Petitioner had firmly decided to use Republic Roofing for subcontracting work prior to submission of its bid. The advertisement for bid required all subcontractors to be listed in any bid in order to allow Respondent to review prior performance and licensure of subcontractors, and also to prevent "bid shopping". Bid shopping is a practice which inflates a general contractor's bid and therefore the actual award by encouraging subcontractors to initially submit high bids to the general contractor and then negotiate a lower price with the general contractor who has received the award. The general contractor's bid remains inflated however and in this way the cost to the state is increased.
Recommendation Based upon the foregoing it is recommended that Respondent enter a Final Order awarding Project Number HRS 85-300000 to Intervenor. DONE and ENTERED this 1st day of April 1986, at Tallahassee Florida. DONALD D. CONN 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 1st day of April 1986. APPENDIX (DOAH CASE NO. 86-0495B1D) Petitioner has submitted a memorandum and a Proposed Recommended Order, both of which appear to set forth proposed findings of fact in unnumbered paragraphs. For purposes of ruling thereon, the unnumbered paragraphs which appear to set forth proposed findings have been consecutively numbered. Memorandum: Introductory material and not a proposed finding of fact. Adopted in part in Findings of Fact 1, 2, 3, 4, but otherwise rejected as cumulative and unnecessary. Adopted in Findings of Fact 5, 7. Rejected as simply a summary of testimony and evidence and not a proposed finding of fact. Rejected as irrelevant. Adopted in part in Findings of Fact 5, 6. Adopted in part in Finding of Fact 4, but rejected in part in Finding of Fact 2 and otherwise rejected as not based on competent substantial evidence. Proposed Recommended Order: Adopted in part in Findings of Fact 1, 3, but otherwise rejected as unnecessary and irrelevant. Rejected as irrelevant. Adopted in part in Finding of Fact 2, but otherwise rejected as contrary to Finding of Fact 2. Adopted in Finding of Fact 5. Adopted in Findings of Fact 5, 7. Adopted in Finding of Fact 4. Rulings on Respondent's and Intervenor's jointly filed Proposed Findings of Fact: Adopted in Findings of Fact 1, 3. Adopted in Findings of Fact 1, 2. Adopted in Findings of Fact 4, 5. Adopted in Finding of Fact 8. , 6. Adopted in Findings of Fact 6, 7. COPIES FURNISHED: Dennis R. Long Esquire 2101 U.S. Highway 19 North Suite 201 Palm Harbor, Florida 33563 Sam Powers Esquire Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee Florida 32301 William Page; Jr., Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301 John P. Fons Esquire Post Office Drawer 11307 Tallahassee, Florida 32302
The Issue The issues in dispute are those associated with the invitation to bid in Project No. 565 by the Respondent as responded to by Petitioner and Intervenor. Among the specific questions to be answered are those concerning Petitioner's allegation that the Respondent allowed the Intervenor to materially alter its bid response to clarify the line item associated with tear down and return delivery for the relocatable classrooms that were being leased under the terms of the bid invitation and that alteration was allowed for the provision of canopies or awnings associated with the entrances to the relocatable classrooms. Questions are raised, first whether the Intervenor's bid response is in compliance with the provisions of Chapter 6A-2, Florida Administrative Code and, second whether the bid response of the Intervenor provides sufficient detail to allow the Respondent to understand the nature of the item, in this instance, the relocatable classroom, which the Intervenor proposed to provide in response to the invitation to bid. Finally, the general question is raised whether the Petitioner or Intervenor is the lowest responsible qualified bidder.
Findings Of Fact On April 28, 1989, Respondent sent out an invitation to bid in Project No. 565. It sought responses from a number of vendors and asked that those vendors on or before July 1, 1989, be prepared to deliver 49 portable classroom units. The arrangement which Respondent contemplated in the invitation was rental of the portable classrooms under a lease for a period of one year. It was intended that the portable classroom units would be delivered to various locations throughout Lake County, Florida. The bid opening was to occur on May 8, 1989, at 2:30 p.m. The request for bids included a lead sheet and in the second paragraph of the instructions on that lead sheet it was stated: All terms and conditions below are a part of this bid request and no bids will be accepted unless all conditions have been complied with. Rights are reserved to reject any and all bids and to waive all technicalities. It was further stated: DIRECTIONS FOR SUBMITTING BIDS ARE AS FOLLOWS: * * * 5. Samples must be submitted with bid where required. On other items descriptive literature with complete manufacturer's specifications in sufficient detail to indicate clearly the item bidder proposes to furnish must accompany the bid. NO BID will be considered without this data. Equipment offered as equivalent to the specific brand must be equivalent in quality of materials, workmanship, effect and corresponding in function and performance When the requirements set out in the preceding paragraph to the Recommended Order are read in the context of all other requirements set forth in the bid invitation, they are found to be consistent with those additional requirements. On the second page of the instructions for the Invitation to Project No. 565 was found a section entitled "Lease/Rental of Portable Classrooms" which stated: The Lake County School Board is requesting bids for Lease/Rental of Portable Classroom units meeting 6A-2 requirements at various locations. Units must meet Florida Code, SBCC Code and 6A-2 Department of Education code for structures of this type. We are requesting prices for 49 units for one-year rental, to be set-up at various locations. Steps, ramps, electrical, water or sewer hooks are not required. This work will be done in- house by Lake County School Board staff. A minimum of three 4' x 8' melaminc marker boards, two 4' x 4' tackboards, one 8 lb. fire extinguisher (2A40 BC) and junction box with stub-out for F/A and pullbox must be installed in each unit. Other provisions within the bid invitation describe the nature of the bid performance security that was incumbent upon each bidder, the need for insurance, nature of the insurance coverage expected and information related to lease provisions, purchase provisions, parts warranties and prices. The bid invitation pointed out that each bid packet furnished by the vendors should provide proof of insurance, a sample lease/rental contract, brochures and specifications of construction materials and contents and a 5 percent bid bond in a separate sealed envelope attached to the outside of the bid. Four vendors offered their responses to this invitation, among them Petitioner and Intervenor. The additional bidders were Diamond Engineered Space and Williams Mobile Offices. The bid opening occurred on May 8, 1989, as advertised. That bid opening was under the auspices, Provisions 6.05(7) and 6.87, Lake County School Board Policies Manual, which describe school construction bid procedures and contemplate awarding contracts to the lowest responsible qualified bidder meeting specifications with regard for the quality of the product being offered by the bidder, its suitability for the needs of the school system, delivery terms, service and past performance of the vendor. Some consideration is given to local vendors, under the provisions, but this has no role to play in this dispute. Rule 6A-2.016, Florida Administrative Code, also speaks to the procedures to be followed by the Respondent in this bid invitation process. The bids were opened, announced and tabulated. It was revealed, in turn that Diamond Engineered Space's price quote was $299,292.92; Petitioner's was $246,563; Intervenor's was $236,166 and Williams Mobile Offices' was $367,420. All vendors had made a timely response to the invitation to bid. In the course of the examination of the bid materials, the price sheet of the Intervenor came into question. This price sheet may be found as part of the Petitioner's Exhibit No. 1 admitted into evidence. In particular, item 3 on the price sheet was debated. In that section, the Intervenor's response stated: 4(b) Tear Down, and Return Delivery $350.00 (50 mile average at $1.50 per side) 4(c) Other ($200.00 Mat'l & Labor)$ NONE Given the parenthetical remarks found within the response, Norma Hale who was the Purchasing Agent for the School Board and in charge of the bid opening asked of Mike Connolly, who was attending the bid opening for the Intervenor, whether the quoted price was a firm price. Herman Kicklighter, the Director of Facilities and Maintenance who attended the bid opening for Respondent also made inquiry concerning whether the tear down charge was a variable or fixed price. These questions were raised against a background circumstance in which some sites may have been further away than is contemplated by the 50 mile average set out in the parenthesis. It was not the intention of the Intervenor to leave the parenthetical information on the bid response and Connolly was caught off guard by this revelation. He had not prepared the bid submission by the Intervenor. Nonetheless, he informed the persons assembled that the price quotation of $350 was a firm price. This information was revealed after the Petitioner's bid had been opened. After some discussion, school officials at the bid opening were convinced that the $350 price was a firm price. Having considered the evidence, the $350 price is found to be a firm price. Moreover, this finding is made recognizing that the Intervenor was never allowed to remove the parenthetical remark from the bid response. That removal would have constituted an alteration of the bid response. If one examines the bid response and multiplies the 50 mile average times $1.50 per side, the amount is $150 plus $200 for material and labor for a total of $350 as reflected in the cost per unit designation. This is not considered to be a variable price quotation. Another topic that was brought up during the course of the bid opening concerned the question of whether the portable classroom units that were to be supplied by Intervenor included awnings or canopies over the door entrances. Petitioner was and is of the opinion that the awnings and canopies are required. It is not clear from a review of Petitioner's Exhibit No. 4 admitted into evidence, which is the Petitioner's bid material, whether Petitioner intended to supply awnings or not. It is clear that the bid material of the Intervenor did not include awnings. Kicklighter asked Connolly if the Intervenor's bid included awnings and the essence of Connolly's response would indicate that the bids did not include awnings. Connolly was allowed to leave the room to make a telephone call to his office to further inquire concerning the response of the Intervenor as it related to awnings. While he was gone, the School Board checked with the Department of Education in Tallahassee on the topic of whether Chapter 6A-2, Florida Administrative Code required awnings in this application. In a conversation with William Moncreath, a certified architect with the Department of Education, Kicklighter was lead to believe that awnings were not needed. Connolly then made this known to the persons in the bid room. Connolly was not present at that time. Connolly then returned and told Kicklighter that the Intervenor would furnish awnings. This comment was met by a remark by Mr. Kicklighter to the effect that it looked like that the Intervenor and the School Board would be doing business. To allow the Intervenor to alter its bid response to include awnings that were not shown in the bid response, would be a material alteration if awnings were required. They are not. Therefore, this discussion concerning the awnings is a moot point. On May 9, 1989, the School Board determined to award the contract to the Intervenor. This met with a timely notice of protest from the Petitioner on May 12, 1989, and in a Formal Written Protest on May 22, 1989. Having been unable to resolve the matter amicably, the case was forwarded to the Division of Administrative Hearings for resolution of the dispute. Notwithstanding the pendency of the case before the Division of Administrative Hearings, based upon a claim of emergency, the lease agreement was entered into between the Respondent and Intervenor on June 15, 1989. In addition to the assertions by the Petitioner concerning whether the quotation for tear down and return delivery was a firm price and whether awnings are required, Petitioner calls into question whether the Intervenor has complied with paragraph 5 on the lead page concerning directions for submitting bids and the third paragraph on the next to the last page of the bid invitation concerning the things that the bid packet must include. Petitioner also questions whether Intervenor has adequately established that it will meet applicable requirements of Chapter 6A-2, Florida Administrative Code. Contrary to the opinion held by the Respondent and Intervenor, paragraph 5 on the lead page to the invitation to bid is a requirement that must be complied with. It is not an item to be ignored, nor it is considered to be superceded by any of the more specific references to requirements that are announced in the subsequent pages to the invitation to bid. The bidders had to make proof of insurance and to offer a sample lease/rental contract and provide a 5 percent bid bond. All bidders complied with those requirements. Petitioner complied with all other requirements as announced in the bid invitation as well. The question is whether Intervenor as a general matter has provided descriptive literature with the complete manufacturer's specifications in sufficient detail to clearly point out what item the bidder is proposing to furnish and whether indeed the item does comply. This is also described as brochures and specifications of construction materials and contents. Additional items that must be provided by Intervenor are those contemplated under Chapter 6A-2, Florida Administrative Code associated with relocatable classroom space and related construction codes made mention in the instructions to bidders under that portion referred to as "Lease/Rental of Portable Classrooms" and the last paragraph of that set of instructions associated with melaminc markerboards. Instead of relying upon clearly delineated information within the response of the Intervenor by way of literature with complete manufacturer's specifications to merely show the nature of the product or item that the Intervenor was proposing to furnish, Respondent, and in particular its principal advisor, Mr. Kicklighter, chose to rely upon certain self-serving statements made by the Intervenor in the course of its bid materials. This refers to an attachment to the sample lease agreement which is a fourth page in that set of materials stating: FLORIDA CODED BUILDING; Built to Comply with the Florida Department of Education's 6" A" .2 Specifications. With prints certified as a Classroom Building which can be located anywhere in Florida. (Zoning permitting). To Kicklighter this means Intervenor'S promises to build the classroom space in accordance with Chapter 6A-2, Florida Administrative Code and to provide certified prints and that provision would overcome any infirmities or paucity of information about the product in his mind. Kicklighter took further solace from correspondence of October 17, 1988, from David Toner, Director of Facilities Planning/Operation of St. Johns County, school Board in Florida which praises the Intervenor's performance in the lease of 28 relocatable classrooms in that county and states that plans and specifications were sent to Tallahassee for approval and installation met Chapter 6A-2, Florida Administrative Code. This is hearsay information and does not establish anything relevant in the matter of whether Intervenor will do as well for the Respondent as it appears to have done for St. Johns County School Board, if Intervenor doesn't first show that it has complied with this invitation to bid. It has not. It is not so much that Kicklighter attached no significance to the substantive information provided by the Intervenor in its response to the invitation, it is the fact that a clear understanding of the impression of Kicklighter concerning that substantiative information is overshadowed by his reliance upon the promise to provide certified prints and the remarks of his counterpart in the St. Johns County School Board as a principal reason for believing that the Intervenor's response was sufficient. That reliance was ill advised. It would be different if certified plans had been provided. They were not. The promise to provide them is outside the bid experience and is unacceptable as a means of compliance with the bid invitation. Looking at what was provided, there is a single sheet entitled Proposed Classroom which gives basic dimensions and information about frame and floor, walls, windows and doors, exterior covering, roof, electrical, A/C and heat, and restrooms. Within this document are found references to a 2600 rpm fan which could well mean 2600 cfm fan, the latter of which would meet requirements and the former which would not. Correction of this item would not be a material alteration. Likewise, correction of the reference of 1" x 4" top plate to 2" x 4" top plate to meet specifications would not be a material correction. in that this 1" x 4" reference as opposed to 2" x 4" reference could well be a typographical error. Within the bid documents by Intervenor there is a sheet referred to as Typical H.C. Toilet Rooms. Toilet Room A relating to Florida and Toilet Room B relating to Georgia. The outside dimensions of the Florida toilet room do not coincide with the Proposed Classroom sheet that has been mentioned. While the outside dimensions of the Georgia toilet room on this document appears the same as in the Proposed Classroom sheet that has been referred to, the configuration in the proposed classroom sheet and that of the sheet related to toilet rooms most recently under discussion are different. Under the circumstances, it is difficult to know what the Intervenor intends by way of toilet room facilities and the response is inadequate to meet the requirements of the bid invitation. This is a material deviation. There are some partial sheets within the bid materials which appear to be the first half of the Classroom Sheet that has been referred to and being duplicates of that information no particular significance is seen in those matters. There is material referred to U.S.G Acoustical Finish. There are further materials related to interior fixture finishes. There is a brochure with pictures showing the outside of a building and the interior of a portable classroom building. This document does not give any specific information as to types of materials, dimensions, etc. There is a document of May 5, 1989, from Descom directed to Mr. Connolly promising to make available replacement parts for 49 classrooms if Descom manufacturers them. There is information provided on the fourth page which is the attachment to the Lease Agreement which makes reference to frames being provided "per code." This page gives certain dimensions and design information related to the floors, walls and petitions and roofs. There is another two page document that shows miscellaneous equipment such as exit signs, melaminc marker boards, tack boards, emergency light with battery and backup and fire extinguisher. These items do not show manufacturer's name. There are references to various provisions within Chapter 6A-2, Florida Administrative Code where Intervenor claims that these items will correspond to. There are comments made on this page about the foundation of the portable classroom that are unclear. On the second page of these materials are found references to plumbing to include plumbing, related to the bathroom dealing with vinyl covered gypsum wall covering, the commode, wall mounted lavoratory, 90 cfm ceiling vent fan and mirrors and accessories. Again, the manufacturer's names are not given. A reference is made under the ceiling vent fan to a rule provision of Chapter 6A-2, Florida Administrative Code. There is reference under electric to two 100 amp load centers with mains and 12/2 copper romex. There is a reference there to 15-440 fluorescent light fixtures. Again, there is the reference to the 2600 rpm through the wall ventilation fan and 2 adequate wall receptacles. HVAC references a three ton Bard wall mount with heat strips and a ceiling supply duct system with STD return air system and a timer for the air conditioner. There is a reference to exterior materials, windows and doors and insulation factors. Again, some of these items under the bathroom, electric and HVAC reference sections within Chapter 6A-2, Florida Administrative Code. Other than the fluorescent light fixtures and HVAC Bard unit, manufacturers names cannot be discerned from this information submitted. The bid invitation calls for buildings of 24' x 36'. The response by Intervenor provides for a building which is 23' x 36', a material deviation from the requirements of the specifications. The light fixture is a Metalux Manufacturing Company surface mounted fixture of four forty watt bulbs. According to Gareuth Eich, an architectural expert whose opinion testimony is accepted, this light fixture does not comply with Rule 6A-2.064, Florida Administrative Code. This is a material deviation. The statement of plans do not show compliance with Rule 6A-2.059, Florida Administrative Code, as to exterior lighting. This is a material deviation from the specifications. The electrical specifications information provided by the Intervenor in the Proposed Classroom sheet shows two 100 amp panels that are separated, whereas specifications shown on the two-page printed informational sheet under electric speak in terms of a 100 amp load center with main disconnect. Regardless, requirements of Lake County are such that a main disconnect panel is required on the exterior of the portable classroom, the installation of which would be the responsibility of the school board. Thus, if two panels were employed inside they would become subpanels and not in conflict with the national electric code as spoken to in Rule 6A-2.065, Florida Administrative Code. On the other hand, it is not clear which alternative in panel design and service Intervenor intends to offer and this is a material deviation from the bid requirements. The information provided concerning the nature of the foundation for the portable classroom units is inadequate. This is a material defect in the response to the bid specifications. Gareuth Eich, Hugh Stump, President of Southern Structure, a company that manufactures portable classroom units and a person who is familiar with bidding procedures associated with those units and Paul Crum, an architect testified on behalf of the Respondent. All questioned the quality of information submitted by the Intervenor in terms of specificity, to meet paragraph 5 on page one of the invitation to bid and particulars that relate to certain requirements of Chapter 6A-2, Florida Administrative Code to this bid invitation. Having considered the remarks and the testimony of others and the exhibits, the Intervenor's response cannot be seen as providing manufacturer's specifications in the necessary detail to indicate clearly the item that bidder proposes to furnish as called for in paragraph 5 of the lead page of the invitation to bid. The response has also failed to meet certain provisions of Chapter 6A-2, Florida Administrative Code in the manner described. The quoted size of the portable building is too small in overall dimension. These are material shortcomings sufficient to cause the rejection of the Intervenor's bid response. Therefore, the Petitioner is in fact the lowest responsible bidder. Although Respondent and Intervenor have contracted for the delivery of the portable classroom units and they are located at the various sites within Lake County, Florida called for in the contract, Petitioner is theoretically prepared to provide classroom units in accordance with the requirements of the specifications.
Recommendation Under authority of Section 120.57(1), Florida Statutes, a formal hearing was held in this case on July 10-11, 1989 in Tavares, Florida. Charles C. Adams was the Hearing Officer.
Conclusions Having reviewed the Amended Administrative Complaint, and all other matters of record, the Agency for Health Care Administration finds and concludes as follows: 1. The Agency has jurisdiction over the above-named Respondent pursuant to Chapter 408, Part II, Florida Statutes, and the applicable authorizing statutes and administrative code provisions. 2. The Agency issued the attached Amended Administrative Complaint and Election of Rights form to the Respondent. (Ex. 1) The Election of Rights form advised of the right to an administrative hearing. 3. The parties have since entered into the attached Settlement Agreement. (Ex. 2) Based upon the foregoing, it is ORDERED: 1. The Settlement Agreement is adopted and incorporated by reference into this Final Order. The parties shall comply with the terms of the Settlement Agreement. 2. The Respondent shall pay the Agency $26,000.00. If full payment has been made, the cancelled check acts as receipt of payment and no further payment is required. If full payment has not been made, payment is due within 30 days of the Final Order. Overdue amounts are subject to statutory interest and may be referred to collections. A check made payable to the “Agency for Health Care Administration” and containing the AHCA ten-digit case number should be sent to: Office of Finance and Accounting Revenue Management Unit Agency for Health Care Administration 2727 Mahan Drive, MS 14 Tallahassee, Florida 32308 Filed June 11, 2013 8:33 AM Division of Administrative Hearings 3. Conditional licensure status is imposed on the Respondent beginning on August 11, 2012, and ending September 11, 2012. ORDERED at Tallahassee, Florida, on this [ o day of te. , 2013. (" RrA + Elizateth Dudek, eis Agency for Health\Gafe Administration
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review, which shall be instituted by filing one copy of a notice of appeal with the Agency Clerk of AHCA, and a second copy, along with filing fee as prescribed by law, with the District Court of Appeal in the appellate district where the Agency maintains its headquarters or where a party resides. Review of proceedings shall be conducted in accordance with the Florida appellate rules. The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I CERTIFY that a true and corre of this Final Order was served on the below-named persons by the method designated on this ae or —) , 2013. Richard Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Bldg. #3, Mail Stop #3 Tallahassee, Florida 32308-5403 Telephone: (850) 412-3630 Barbara J. Staros Richard Joseph Saliba Administrative Law Judge Office of the General Counsel Division of Administrative Hearings Agency for Health Care Administration (Electronic Mail) (Electronic Mail) Anna Gay Small, Esquire Finance and Accounting Allen Dell P.A. Agency for Health Care Administration 202 South Rome Avenue, Suite 100 (Electronic Mail) Tampa, Florida 33606-1854 (U. S. Mail) Jan Mills Facilities Intake Unit (Electronic Mail)
Findings Of Fact As the parties stipulated, DOR "seeks to lease warehouse and office space in the City of Tallahassee in a privately owned building, and issued a request for proposals ('RFP') to seek competitive proposals. Four offerors responded with proposals; three of these were deemed responsive by the Department, and were evaluated by the Department on a variety of weighted evaluation criteria, only one of which was rental rate. . . . The Department proposes to award the lease to the Fregley/Oertel/Skelding Partnership ('F/O/S')." North of Gun Club, South of Springsax By unrecorded warranty deed dated January 2, 1989, Petitioner's Exhibit No. 1, Richard L. Pelham, individually, conveyed to petitioner Equity Resources, Inc., property fronting on Springhill Road in Tallahassee, Florida, on which a warehouse stands. The north boundary of petitioner's property inter-sects the western edge of the Springhill Road right-of-way at a point south of the intersection Springsax Street (which is a paved road) forms when it dead ends into Springhill Road. Petitioner's property does not abut the intersection. The distance between the northeast corner of petitioner's property and the Springsax Street intersection was variously put at "a few feet," (T.189), 100 feet, 100 to 200 feet, and 335 feet. The south boundary of petitioner's property intersects the western edge of the Springhill Road right-of-way at a point some distance north of the intersection between Springhill Road and a dirt road known as Gun Club Road. Specifications Disseminated Richard L. Pelham, who is president of petitioner Equity Resources, Inc., read in the newspaper about respondent's intention to lease office and warehouse space. At his request, Karen Allen, an employee of Universal Equities, Inc., another company with which Mr. Pelham is affiliated, picked up a copy of the request for proposal and bid proposal submittal form at a DOR office. The request for proposal and bid proposal submittal form package which Ms. Allen picked up included a paragraph describing the geographical boundaries of the service area in which DOR hoped to lease space. The paragraph states: Space to be located within or abutting the boundaries starting at the corner of U.S. 90 W. and Capital Circle Southwest (263) proceed South on Capital Circle to Orange Avenue to Springhill Road, South on Springhill to Springsax, East on Springsax to Northridge Road, South on Northridge to Ridge Road, East on Ridge Road to State Road 61 (Crawfordville Hwy), North on SR 61 to U.S. 27, North on U.S. 27 to West Tharpe Street, West on Tharpe Street to Capital Circle NW, south on Capital Circle to Tennessee Capital Boulevard, Southwest on Tennessee Capital Boulevard to U.S. 90 and East on U.S. 90 to Capital Circle Southwest (263). (See Map Attachment B) Petitioner's Exhibit No. 2, p. 8. Devoid of any markings purporting to represent boundaries, the map attached to the bid package Ms. Allen picked up depicted much of Tallahassee, including large areas outside the boundaries the quoted paragraph specified. Many of the request for proposal and bid proposal submittal form packages DOR distributed did include maps on which the area described in paragraph 14A on page eight was outlined. The map in the master package showed boundaries, but they had to be replicated manually on copies. For outlining, DOR employee(s) used an implement that leaves a yellow mark which most copying machines do not reproduce. Mr. Pelham asked Richard Gardner, who may or may not have been at the time an officer or employee of Equity Resources, Inc. (T.62), but who testified he was an officer as of the time of the hearing (T.63), to attend a preproposal conference. Mr. Gardner did attend without, however, taking with him either the request for proposal and bid proposal submittal form package Ms. Allen had obtained or his eyeglasses. After the conference concluded, he asked for a copy of the request for proposal and bid proposal submittal form package. Michael S. Partin, a senior management analyst for DOR, asked another DOR employee to make a copy. When this effort proved unsuccessful (the paper jammed and half pages were produced), he did it himself. After consulting the master bid package, Mr. Partin used a yellow marker to outline on the map he gave Mr. Gardner the area described in the request for proposals. Confusion Feigned Petitioner's Exhibit No. 4 is a copy of a map included in a bid package as Attachment B to a request for proposals. On it, somebody has drawn, with a yellow marker, a boundary that differs from the boundary drawn on the master map, but only in the vicinity of petitioner's property: instead of tracing Springhill Road south to Springsax Street and turning east, the boundary represented on Petitioner's Exhibit No. 4 proceeds south on Springhill Road, past petitioner's property, to Gun Club Road, and turns east there. Mr. Gardner testified that Petitioner's Exhibit No. 4 was the map given to him as part of the package he received after the preproposal conference. But Mr. Partin's contrary testimony that Petitioner's Exhibit No. 4 is not the map he gave Mr. Gardner has been credited. The map he gave Mr. Gardner "look[ed] like [Petitioner's] Exhibit No. 5." T.166. Petitioner's Exhibit No. 5 unambiguously depicts the boundary turning east from Springhill Road onto Springsax Street, in complete consonance with the verbal description. Mr. Gardner also testified that he understood from discussions with Mr. Partin that the boundary went south to Gun Club Road before turning, but this testimony has not been credited. Both Mr. Partin and Barbara Foster Phillips, who was present during the conversation, testified that nothing that was said could reasonably have been understood to mean this. The latter account has been accepted as truthful. Mr. Pelham's testimony that he relied on (a) map(s) as establishing (a) boundar(ies) inconsistent with the boundary clearly described in paragraph 14A on page eight of the request for proposal has not been credited. After determining the location of petitioner's property, DOR did not evaluate petitioner's proposal further, even though petitioner offered to lease space for significantly less than any other offeror, and even though petitioner's property was closer to other DOR facilities than many points within or abutting the boundaries set out in the request for proposals. Surprise at Hearing On the master map itself, Petitioner's Exhibit No. 5, because of the width of the marker as it turned the corner from Springhill Road onto Springsax Street, yellow extends down Springhill Road far enough south of Springsax Street that at least some of petitioner's property fronts on the yellowed portion of Springhill Road. Not until final hearing, however, did any bidder see the master map.
Recommendation It is, accordingly, RECOMMENDED: That respondent reject petitioner's proposal for lease No. 730:0106 as nonresponsive. DONE and ENTERED this 9th day of November, 1990, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of November, 1990. APPENDIX Petitioner's proposed findings of fact Nos. 4 and 13 have been adopted, in substance, insofar as material. Petitioner's proposed findings of fact Nos. 1, 2, 7, 8, 9, 10 and 12 have been rejected as unsupported by the weight of the evidence. With respect to petitioner's proposed findings of fact Nos. 5 and 6, no bidder saw the "master map" before the final hearing in the present case. Although the breadth of the marker yellowed Springhill Road below the intersection with Springsax Street, the turn onto Springsax Street is unambiguously depicted on the master map. With respect to petitioner's proposed finding of fact No. 3, unavailability of the legal description was not proven. With respect to petitioner's proposed findings of fact Nos. 11 and 14, the lease was to last five, not ten years. Respondent's proposed findings of fact Nos. 1, 2, 4, 5, 6 through 20, 22, 23, and 25 through 29 have been adopted, in substance. With respect to respondent's proposed finding of fact No. 3, the evidence did not establish that DOR "determined a boundary area they felt offered the optimum number of properties." With respect to respondent's proposed finding of fact No. 21, Pelham testified both that the property did and that it did not abut the intersection. With respect to respondent's proposed finding of fact No. 24, the distance depends on the method of measurement. With respect to respondent's proposed findings of fact Nos. 30 and 31, Mr. Partin's subjective views are immaterial. Intervenor's proposed findings of fact Nos. 1 through 4, 7 through 13 and 16 through 24 have been adopted, in substance, insofar as material. With respect to intervenor's proposed findings of fact Nos. 5 and 6, Mr. Partin's subjective intent is immaterial. With respect to intervenor's proposed findings of fact Nos. 14 and 15, the distance depends on the method of measurement. Copies furnished: Gene T. Sellers, Esquire Department of Revenue Tallahassee, FL 32399-0100 William A. Friedlander, Esquire Equity Resources, Inc. 424 East Call Street Tallahassee, FL 32301 Kenneth G. Oertel, Esquire Oertel/Fregley/Sheldon Partnership 2700 Blairstone Road Tallahassee, FL 32301 J. Thomas Herndon Executive Director Department of Revenue 104 Carlton Building Tallahassee, FL 32399-0100 William D. Moore, General Counsel Department of Revenue The Capitol, LL-10 Tallahassee, FL 32399-0250
The Issue This proceeding concerns the Respondent's rejection of all bids for construction of its new middle school "FF". Petitioner has challenged that intended action, arguing that it was arbitrary and capricious and contrary to the law. The parties disagree as to the basis for the intended action. Initially the School Board considered rejecting all bids for failure to meet MBE/WBE goals, and Petitioner protested. Later, the Respondent determined that significant revisions to the construction documents were required, and the bids were all rejected on that basis. Petitioner protested again, but contends that the original basis for intended action is still at issue. For reasons set forth in the following recommended order, the MBE/WBE goal issue is moot. The central issue for determination, therefore, is whether Respondent properly rejected all bids based on its determination that substantial changes are required, and Petitioner's motion to consolidate its two protests is DENIED.
Findings Of Fact Petitioner, Mark C. Arnold Construction Co., (Arnold), is a commercial general contracting firm located in Orange County, Florida, but well-experienced in building public facilities throughout the state. Arnold currently is engaged in constructing school "EE" for Respondent, Orange County School Board (School Board, or Board). In January 1992, the school board promulgated an advertisement for bid soliciting bids for the construction of a new school project known as Middle School "FF". The advertisement for bid was published five (5) times in the Orlando Sentinel on January 7, 14 and 28 and on February 4 and 1, 1992. The board also compiled a project manual which among other things contained a copy of the advertisement for bid and instructions to bidders which governed the bidding process. The advertisement for bid reserved the school board's "right to reject any or all bids and to waive any informality or irregularity in any bid received". (Joint Exhibits 1 and 2) The instructions to bidders also reserved the school board's "right to reject any and all bids when such rejection is in the interest of the school board of Orange County, Florida...". (Joint Exhibit 5) The project manual also contained a bid form to be used by bidders. In it the bidder agrees "that the Owner reserves the right to reject this bid, or to waive informalities in any bid,...". Such language was contained in the bid submitted by Arnold. (Joint Exhibits 7 and 9) By addendum dated February 5, 1992 the school board amended and replaced Section A-12 of its project manual and instructions to bidders. Such amendment, among other things, established goals for minority/womens business enterprise (MBE/WBE) subcontractor and supplier participation in the project, and it required any bidder who failed to attain the goals to demonstrate a good faith effort to do so; otherwise, the bid of such bidder would be rejected. (Joint Exhibit 8) Arnold's bid showed that Arnold had no MBE/WBE subcontractor or supplier participation. (Joint Exhibit 9) Arnold's bid was the lowest of eleven bids received by the school board. Arnold's bid was in the amount of $10,977,000.00. The next lowest bid was in the amount of $11,075,000.00. After bids were opened, Arnold promptly contacted the MBE/WBE manager of the school board, and was advised by her to try to obtain MBE/WBE participation to meet the goals; within several days after bid opening Arnold was able to get a total of about 13.5% MBE/WBE subcontractor/supplier participation. Contrary to the MBE/WBE manager's instruction, the addendum to the project manual and bid instructions proscribed any effort after bid opening to attain the MBE/WBE goals and to thereby make a bid responsive. In spite of Arnold's attempt to demonstrate to the MBE/WBE manager that it had made a good faith effort to attain the goals prior to bid opening, the MBE/WBE Manager determined that no sufficient good faith effort was shown by Arnold. On March 5, 1992 the school board furnished to Arnold a written notice of its intended decision to reject all bids because of the failure of all contractors (bidders) to attain the MBE/WBE goals and/or to show compliance with the good faith effort requirement of the contract documents. (Joint Exhibit 11) On March 10, 1992 Arnold and its attorney attended a meeting of the school board for the purpose of appealing the MBE/WBE manager's decision that Arnold had not demonstrated a good faith effort to meet the goals. Mark C. Arnold spoke at length to the school board itemizing actions which Arnold contended showed its requisite good faith effort to solicit MBE/WBE participation. Arnold's attorney also made a presentation at the meeting. By a 6 to 1 vote, the board initially sustained the findings of the MBE/WBE manager that a good faith effort was not shown by Arnold, and rejected all bids because of the failure of all contractors (bidders) to meet the minority participation goal and/or to show compliance with the good faith effort requirements of the contract documents. (Joint Exhibits 12 and 15) Following a work session after its initial meeting on March 10, the board convened again in regular session on March 10, at which time it unanimously voted to reconsider its earlier action of rejecting all bids, and it voted to postpone action of the award of a contract for the construction of Middle School "FF". The effect of that action was to rescind its earlier action rejecting all bids and determining that Arnold had not shown a good faith effort to solicit MBE/WBE participation; and also to postpone action on the entire matter to a future time. (Joint Exhibit 13). On March 20, Arnold filed Formal Protest directed to the board's March 5th Notice of Intended Decision and directed to the March 10 action rejecting Arnold's bid. During or about the first week in April, engineers for the school board met with the school board's attorney, William M. Rowland, Jr., to inform him that significant revisions needed to be made in the site work and sewer plant plans for the Middle School "FF" project. The engineers recommended that because of the need to make such revisions all bids for the project should be rejected and the project should be rebid after the plans were revised. As a result of the early April meeting with the engineers, the board's attorney prepared and delivered a memorandum dated April 7th advising the school board of its engineers' recommendations. The attorney also submitted a resolution which, if adopted, would serve to reject all bids and require a rebidding of the project. (Joint Exhibit 16) On April 10th the school board furnished to Arnold an amended notice of intended decision, which by its express terms replaced, amended and superseded its prior notice of intended decision dated March 5th, and notified Arnold of its intent to reject all bids on the project because of the need to make significant revisions in the construction documents. (Joint Exhibit 17) Said amended notice rendered moot the March 20 formal protest filed by Arnold. At its meeting held on April 14th, the board considered the April 7th memorandum from its attorney. At that meeting, the board heard from its staff engineer, Chuck Greif, who pointed out the revisions needed to the site plans for the Project. (Joint Exhibit 20, pages 59-62, 77-78) Mark Arnold also spoke, contending that the site revisions could be handled by change orders if Arnold's bid were accepted. (Joint Exhibit 20, pages 76-77) Bob Gallardo, the school board Director of Facilities and Planning, advised of problems encountered in the site work and of the need to make significant revisions in the site plans. (Joint Exhibit 20, pages 87-92) As the geotechnical engineer on the job, Charles Cunningham stressed the significance of the site plan changes. (Joint Exhibit 20, pages 96-97) Derek Burke, engineer on the project, confirmed that major redesign needs to be done. (Joint Exhibit 20, page 64) Attorney Rowland advised that the prior intended decision to reject all bids because of failure of all bidders to comply with the MBE/WBE requirements of the bid documents, was moot and no longer before the board for action, and that the only resolution before the board for action was the resolution to reject all bids because of the need to make significant site plan revisions for the project. (Joint Exhibit 20, pages 72-76) The school board unanimously adopted that resolution. (Joint Exhibit 20, pages 97-99; Joint Exhibit 18) On April 23rd Arnold timely filed the written formal protest which is the subject of these proceedings. At the time of the meeting held by on April 14th, there was a need to make significant changes in the site work and sewer plant for the Middle School "FF" project. Such changes formed a valid and legitimate reason for the board to reject all bids. Even at the time of this administrative hearing, some details regarding the site work still needed to be worked out. For example, an outfall is needed for the percolation pond underdrain but it was not included in the project design. The site work and sewer plant changes and revisions could have been handled by change orders between Arnold and the school board, had the board accepted Arnold's bid, since any changes in a project can be accomplished by change orders; however, revising the nature and quantity of construction work by change orders involves the potential for excessive cost to the project owner and change orders always require agreement between the parties. Prudence dictates that when it is known that changes must be made, the bid advertisement should include those changes up front to remove the uncertainty of costs and to put all bidders on equal footing. There has been no showing of any illegality, fraud, oppression or misconduct in the actions of the school board in rejecting all bids on the Middle School "FF" Project and in opting to seek new bids for the project. There has been no showing in these proceedings that the school board's rejection of all bids had the purpose or effect of defeating the object and integrity of competitive bidding.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: That a Final Order be entered dismissing the bid protests by Petitioner. DONE AND RECOMMENDED this 10th day of July, 1992, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Charles Evans Davis, Esquire 170 East Washington Street Orlando, FL 32801 MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of July, 1992. William M. Rowland, Jr., Esquire 1786 North Mills Avenue Orlando, FL 32803 Dr. James L. Schott, Superintendent Orange County School Board P.O. Box 271 Orlando, FL 32802
