The Issue Whether the Department of Corrections' proposed award of Lease No. 700:0710 to Melstine Corporation was proper.
Findings Of Fact The Respondent, Department of Corrections, Region Four (Department), issued a request for proposals for approximately 7,500 square feet of office space in Dade County which was designated as Lease No. 700:0710 (RFP). The office space was to be used as offices for the professional and support staff who were providing probation and parole supervision. Petitioner Wharton Little River (Wharton), Intervenor Green East #2, Ltd. (Green East), and Melstine Corporation (Melstine) submitted proposals to the Department. The Department's evaluation committee evaluated the three proposals, and their evaluation included a site visit to each of the proposed locations. Melstine Corporation received the highest number of points followed by Wharton Little River. The Department notified all bidders of its intent to award the lease to Melstine. On March 15, 1995, Wharton filed a notice of intent to protest the Department's decision to award the lease to Melstine. Wharton filed its formal written protest on March 14, 1995. The RFP set forth the requirements for submitting a responsive proposal and the criteria to be used in evaluating the proposals. The bidders were required to provide 55 offstreet parking spaces for the exclusive use of the Department's employees and clients at no additional cost to the Department. This provision is interpreted to mean that the bidder could propose 55 exclusive parking spaces plus or minus one to two percent. The RFP provided spaces in which the bidders were to indicate whether they were proposing onsite or offsite parking. The RFP also provides: Federal, state, county, and local laws, ordinances, rules, and regulations that in any manner affect the items covered herein apply. Lack of knowledge by the bidder will in no way be a cause for relief from respon- sibility. This provision is interpreted to include applicable zoning codes. Both Melstine and Wharton proposed to provide 55 exclusive parking spaces onsite. Green East proposed 40 exclusive spaces and 20 nonexclusive spaces. The evidence did not establish whether Green East's spaces were onsite or offsite. The evaluation criteria assigned a maximum number of points a bidder could receive for specific criteria. The maximum points totaled 100. The criteria for evaluating parking was the "[p]roximity of adequate parking area to the building. Must be well lighted." The maximum number of points that could be awarded to a bidder for parking was 10. Melstine received 10 points for parking. The space proposed by Melstine is located on the ground floor of a six-story building with approximately 87,000 square feet. The building is currently vacant. Melstine is actively seeking to lease other portions of the building. In its proposal Melstine stated that its intention was to market the remaining space on the ground floor to the banking industry as a banking location. There are 54 onsite parking spaces on the property proposed by Melstine. There is additional space onsite that could be converted to 20 parking spaces, bringing the total parking spaces available on the Melstine property to There are approximately 50 offsite parking spaces available in a lot across the street from the building proposed by Melstine. Melstine provided a map in its proposal showing that the located property was located in a C-1, limited commercial, zone. By letter dated February 21, 1995, Phillip J. Procacci, advised the Department that he felt that the Melstine proposal did not meet the requirements of the RFP because the parking spaces did not meet the zoning code requirements of the City of Miami. Department staff contacted the City of Miami zoning officials and were advised that the parking proposed by Melstine was acceptable under the City of Miami's zoning regulations. The Department relied on the representations from the City of Miami that the Melstine property would be in conformance with the zoning code. By letter dated April 17, 1995, Juan C. Gonzalez, Acting Zoning Administrator, advised Melstine's agent that the parking on the Melstine site would be acceptable as meeting the zoning requirements for the City of Miami for office use without the need of providing additional spaces for existing office square footage. By letter dated April 24, 1995, Mr. Gonzalez further clarified the City of Miami's position on parking spaces assigned to individual tenants. While the code does mandate a certain amount of spaces to be provided on site for individual uses, the code is silent on how the parking will be assigned, therefore, the city does not become involved or regulates assignment of existing parking spaces. Region Four of the Department has not experienced a problem with lessors not providing adequate parking in the past. Melstine's proposal met the parking requirements of the RFP and complied with the City of Miami's zoning ordinance.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the bid protest of Wharton Little River, Investment, Inc. by Procacci Commercial Realty, Inc. be dismissed and that Lease No. 700:0710 be awarded to Melstine Corporation. DONE AND ENTERED this 20th day of June, 1995, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of June, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-1839BID To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. (Proposed Recommended Order After Reopening of Hearing) Paragraphs 1-3: Accepted in substance. Paragraph 4: Accepted in substance as it refers to the parking criteria. The remainder is rejected as unnecessary. Paragraph 5: Accepted in substance. Paragraph 6: Accepted to the extent that Wharton received the second highest number of points. Paragraphs 7-11: Accepted in substance. Paragraph 12: Rejected as not supported by the evidence. There was no evidence that access to the parking lot from the Melstine property is owned by Melstine. Paragraphs 13-22: Rejected as subordinate to the facts actually found. Respondent's Proposed Findings of Fact. Paragraphs 1-23: Accepted in substance. Paragraphs 24-25: Rejected as subordinate to the facts found. Paragraphs 26-28: Accepted in substance. Paragraph 29: Accepted. Paragraph 30: Rejected as subordinate to the facts found. Paragraph 31: Accepted. Paragraphs 32-34: Rejected as subordinate to the facts found. Paragraphs 35-41: Accepted in substance. Intervenor's Proposed Findings of Fact. (The paragraphs are unnumbered. Each paragraph will be addressed in the order it appears under the section entitled, "The Computation of Error.") Paragraph 1: The first three sentences are accepted in substance. The fifth, sixth, and seventh sentences are rejected as subordinate to the facts found. The remainder is rejected as not supported by the greater weight of the evidence. Paragraph 2: These adopted paragraphs are addressed above under Respondent's Proposed Findings of Fact. Paragraphs 3-4: Rejected as subordinate to the facts found. Paragraph 5: Rejected as a conclusion of law. Paragraph 6: Rejected as not supported by the greater weight of the evidence. COPIES FURNISHED: R. Beth Atchison Assistant General Counsel Florida Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-2500 Robert A. Sweetapple, Esquire Sweetapple, Broeker & Varkas 465 East Palmetto Park Road Boca Raton, Florida 33432 John R. Beranek, Esquire 227 South Calhoun Street Post Office Box 391 Tallahassee, Florida Harry K. Singletary, 2601 Blairstone Road 32302 Jr., Secretary Tallahassee, Florida 32399-2500 Louis A. Vargas General Counsel 2601 Blairstone Road Tallahassee, Florida 32399-2500
Findings Of Fact On or about January 26, 1990, the Respondent sought competitive bids through Invitation to Bid Number 590:2123 for the lease of certain office space in Plant City, Florida. The bid opening occurred on March 1, 1990, and Intervenor was determined to have submitted the lowest responsive bid. In addition to Intervenor's bid, bids were received from Petitioner and Walden Investment Company, which is not a party in this case. On or about May 8, 1990, the Respondent notified all bidders of its intent to award this lease to Intervenor, and on May 10, 1990, the Petitioner filed its notice of protest concerning this award claiming that Intervenor's bid was not responsive to the parking requirements in the Invitation to Bid. Section 15 of the Invitation to Bid requires that a minimum of 65 parking spaces be provided, and that a minimum of 15 of these spaces must be full size and a minimum of 5 must meet ANSI standards for handicapped parking spaces. No definition or specification for full size parking spaces is provided in the Invitation to Bid. Petitioner did not establish that there is a commonly accepted standard for full size parking spaces in the construction or development industry, or that the Respondent uniformly requires all full size parking spaces to be of certain dimensions. The Intervenor certified in its bid that it would meet the parking space requirement of the Invitation to Bid. The Respondent does not require detailed site plans which would depict actual dimensions for each parking space to be submitted with each bid. Rather, Section 10(d) of the Invitation to Bid requires only a line drawing "drawn roughly to scale", and specifies that final site layout will be a "joint effort between the department and the lessor so as to best meet the needs of the department". The Intervenor did submit a rough line drawing with its bid which depicts 71 parking spaces. The Respondent routinely accepts a bidder's certification that it will meet the parking requirements in an Invitation to Bid, and if those requirements ultimately are not met, the Respondent may proceed against the performance bond which the successful bidder is required to post. The Petitioner presented evidence that there is not enough room on Intervenor's site to provide 15 full size parking spaces measuring 10 feet wide by 20 feet long. However, there is nothing in the Invitation to Bid, or in the City of Plant City's Code which requires full size parking spaces of this dimension. Based upon its certification and the inclusion of a rough line drawing showing space for parking in excess of the requirements in the Invitation to Bid on this site,, it is found that Intervenor was responsive to the parking requirements in this Invitation to Bid.
Recommendation Based on the foregoing, it is recommended that the Respondent enter a Final Order dismissing Petitioner's protest and awarding Lease Number 590:2123 to Intervenor. DONE AND ENTERED this 3rd day of August, 1990, in Tallahassee, Leon County, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of August, 1990. COPIES FURNISHED: Jack Farley, Esquire District 6 Legal Office 4000 West Dr. Martin Luther King, Jr., Blvd. 5th Floor, Room 520 Tampa, FL 33614-9990 Alan Taylor P. O. Box 7077 Winter Haven, FL 33883-7077 Richard C. Langford, Esquire P. O. Box 3706 St. Petersburg, FL 33731-3706 R. S. Power, Agency Clerk 1323 Winewood Blvd. Building One, Room 407 Tallahassee, FL 32399-0700 John Miller, General Counsel 1323 Winewood Blvd. Tallahassee, FL 32399-0700
Findings Of Fact The Department of Community Affairs has its headquarters in the Rhyne Building on Centerview Drive in the City of Tallahassee. The Rhyne Building is one of a cluster of office buildings in the Koger Center which is owned by Koger Properties, Inc. One of the organizational units in the Department is the Energy Office, which was organizationally located within the Office of the Governor until 1991. At that time, the Energy Office was transferred by the Legislature to the Department, and the Department temporarily located the Energy Office organizationally as one of the components in the Office of the Secretary. The Secretary of the Department has decided to organizationally and physically integrate the Energy Office into the Department's Division of Housing and Community Development, having determined that the Energy Office programs are functionally related to that Division's programs. The Energy Office was physically housed in a building owned by Petitioner on Bronough Street in the City of Tallahassee. After the Energy Office was merged with the Department, the Department decided to move the Energy Office to the Rhyne Building. Officials of the Department responsible for supervision of the Energy Office had found it inconvenient to travel the distance between the Bronough Street and Centerview Drive locations and were experiencing difficulty in getting Energy Office personnel and other Department personnel to meet with each other and coordinate related duties. Accordingly, on January 31, 1993, the Department moved the Energy Office out of the Bronough Street building and into the Rhyne Building. As a result of that move, Petitioner has filed a lawsuit against the Department, alleging, inter alia, that the Department breached its lease with Petitioner. That litigation is still pending. Another organizational component of the Department is the Florida Housing Finance Agency. That Agency is physically located in the Marathon Building on Seagate Drive in the City of Tallahassee, part of the Koger Center. That Agency is in need of additional office space caused by new programs and by additional employees. The Agency does not have adequate space for its employees in its current location. The Agency and senior Department officials desire that the Agency remain in close physical proximity to the Rhyne Building since the Agency, like the other components of the Department, receives its administrative and other support services, including fiscal, legal, personnel, and procurement, from the Department. Further, the Agency, like the other divisions of the Department, have a number of interrelated programs which require a close working relationship. Although there were a number of possible solutions to the overcrowding faced by the Agency, splitting its different components into different locations was determined to be impracticable. Accordingly, several proposals to relocate other components of the Department were considered. Ultimately, the Department decided to lease additional office space for the Agency and locate the Energy Office in the Rhyne Building. A state agency which needs private office space of 3,000 square feet or more is required to engage in competitive bidding procedures. A state agency initiates such a process by submitting a Request For Prior Approval of Space Need ("RSN") to the Department of Management Services ("DMS") to show its need for additional space. Attached to the RSN is a Letter of Agency Staffing, which is used to determine the additional space needed based on the number and pay grade of agency employees and other variables. When an RSN is submitted, DMS first determines whether there is suitable state office space to meet the needs of the agency. If state-owned space is not available, the agency may solicit competitive bids from private lessors for the proposed lease by using a Request For Proposal ("RFP"). The state agency prepares the specifications used in the RFP, using the guidelines of DMS. Such specifications include a functional description of the type of space needed, the square footage, and the area of acceptable locations. The area of location of the premises is outlined by geographic boundaries on a map of the city or county where the space is needed, and the map is attached to the RSN and the RFP. The RFP also contains the evaluation criteria created by the agency soliciting bids for determining the score for each bidder's proposal. Each criterion is assigned a specific score, and the total possible score for all criteria is 100. The Department's interest in keeping its component programs in close proximity to each other and to the Office of the Secretary in the Rhyne Building at the Koger Center for supervisory, management, and operational effectiveness is strong. The amount of additional space needed, however, made the Department's acquisition of additional space subject to competitive bidding. The Department employee responsible for obtaining the additional space, Kirby Bass, advised senior management officials that in order for the Department to realize its desire to locate all of its components in proximity to the Office of the Secretary in the Koger Center, the Department could simply expand its current leases in the Koger Center in yearly increments below 3,000 square feet, thereby avoiding the requirement that the Department engage in the competitive bidding process. Rather than following the incremental approach, Bass' supervisor, Lynn Ekholm, directed him to prepare appropriate specifications for a new lease to accommodate 55 new and transferred employees needing approximately 14,000 square feet of additional space. Bass began gathering the information and preparing the paperwork to obtain the additional office space under the direction and supervision of Ekholm, the Department's Director of Administrative Services, and Mary Anne McMullen, the Department's Assistant Secretary, who had been charged with resolving the Department's office space problems. Bass contacted Randall Baker at DMS and discussed with him that Department's requirements for procuring additional office space. He also contacted the purchasing agents at the Department of Revenue and at the Department of Labor and Employment Security ("DLES") to determine how best to prepare the requisite documentation to meet the lease parameters desired by his Department. He discussed his Department's desire to obtain office space in an existing building in or near the Koger Center. Bass discovered that DLES had two leases obtained through competitive bidding within a small geographic area encompassing the Koger Center. One lease encompasses in excess of 15,000 square feet and is dated December 13, 1990; the other lease encompasses in excess of 16,000 square feet and is dated November 19, 1992. In both of those bid solicitations, DLES had received bid proposals from only two bidders located within that boundary -- Koger Properties, Inc., and Parkway-Oakland General Partnership. Each of those bidders received one of those two bid awards. Bass also made telephone inquiries to owners of buildings within the geographic area utilized by DLES to obtain those two leases and drove through the area. Bass did not go into any of the buildings that he drove past to inquire of the rental agents whether they in fact had any space available. He did notice a sign located at or near the complex east of the Oakland Complex advertising space available for up to 18,000 square feet. The evidence is unclear as to the exact buildings with the sign. If the sign related to the buildings known as the Parkway-Oakland Complex, no space was available, according to the testimony of one of the Department's witnesses. If that sign related to the Parkway Terrace Building, that building is owned by one of Petitioner's related companies, and that building is full. As a result of Bass' driving in the area, the Department did not discover any vacant space in any existing building within the geographic boundaries utilized by DLES. As a result of Bass' telephone contacts to owners of existing buildings within the geographic boundaries utilized by DLES, the only rental agent who represented that he had sufficient space available at that time was the rental agent for the Koger Center. That rental agent further advised Bass that although he had sufficient space available in the Koger Center, the rental rate would not be competitive with rates charged by other landlords. Accordingly, at the time that the Department drafted the geographic boundaries and evaluation criteria which are the subject of this proceeding, it knew that the Koger Center had sufficient space available although the Koger Center's rental agent did not consider his rates to be competitive, and the Department knew of no other available space within the boundaries. The Department prepared its RSN, utilizing the geographic boundaries which DLES had used. As stated in the RSN and in the subsequent RFP, the geographic boundaries selected by the Department are as follows: Beginning at the intersection of Capital Circle and Governor's Court Road, proceed west on Governor's Court Road until it ends. Continue on a projection, due west, to the intersection with Blair Stone Road. Proceed south on Blair Stone Road to Paul Russell Road. Proceed east on Paul Russell Road to Monday Street. Continue east on Monday Street to Capital Circle. Go north on Capital Circle to Governor's Court Road, the point of beginning. The RSN also represented that the Department was seeking a new lease for 14,193 square feet, more or less, to house 55 employees from June 1, 1993, through March 31, 1997. The Department submitted its RSN to DMS where it was reviewed by Randall Baker. DMS is authorized to approve an RSN submitted by a state agency seeking to lease private office space. DMS checks to determine if there is space available in a state-owned building, and, if there is not, approves the request of an agency to lease private space. DMS also checks to verify that the amount of space being requested is appropriate for the number and types of employees who will occupy the desired space. DMS does not have the authority to approve or disapprove other components of the RSN; for example, DMS can only make recommendations regarding such items as geographic boundaries. Baker reviewed the RSN, determined that there was no space available in a state-owned building, determined that the amount of space requested was appropriate for the number and types of employees to be housed in the additional space, and determined that the RSN form was properly completed. Baker was concerned about the small geographic area from which the Department would accept bids. He noted, for example, that the northern boundary cuts through a residential area and is not a commercial thoroughfare. He checked the vendor list maintained by DMS and found that there were other properties which were available but which were outside the boundaries to be utilized by the Department. Based upon his experience, he knew that an expanded radius for bid submittal would be likely to obtain a better rental rate for the Department. Baker sent the Department a letter, dated December 30, 1992, which states as follows: While we are approving your Request for Space Needs, it should be noted that the boundaries are rather restricted and may eliminate bidders who have quality space available. The Department employees who received and/or reviewed that letter did not consider Baker's letter to be a criticism of the Department's desired geographic boundaries. Accepting the first half of the sentence and ignoring the second half of the sentence, the Department determined that Baker's letter represented approval of its RSN and the geographic boundaries set forth therein. Accordingly, on January 26, 1993, the Department issued its RFP for its proposed Lease No. 520:0062. The bid specifications contained in that RFP called for 14,193 square feet of office space, more or less, to be available for occupancy not later than June 1, 1993. In addition, the RFP specified that the office space must be located in the City of Tallahassee inside the same geographic boundaries described in the Department's RSN. The RFP also contained the criteria by which bid submittals would be evaluated. Those criteria are as follows: C. EVALUATION CRITERIA (AWARD FACTORS) The successful bid will be that one determined to be the lowest and best. All bids will be evaluated based on the award factors enumerated below. Rental, using Total Present Value methodology for basic term of lease (see #D, General Provisions Items 3 and 4) applying the present value discount rate of 5.38 percent. (Weighing: 30) The effect of environmental factors, including the physical characteristics of the building and the area surrounding it, on the efficient and economical conduct of Departmental operations planned for the requested space. (Weighing: 15) Conformance of and susceptibility of the design of the space offered to efficient layout and good utilization and to the specific requirements contained in the Invitation to Bid. (Weighing: 15) Frequency and availability of satisfactory public transportation within one block of the offered space. (Not to exceed a weight of 10 award factors) (Weighing: 4) Availability of adequate dining facilities within one mile of the offered space. (Weighing: 5) Proximity of offered space to Department of Community Affairs, Secretary's Office, Rhyne Building, Koger Center. (Weighing: 25) Moving cost (furniture, equipment, etc.) (Weighing: 1) Aggregate square footage in street level space. (Weighing: 5) Total award factors = 100 The bid specifications contain no other guidelines or information on how each criterion will be evaluated or how points will be awarded within the point spread for each criterion. Other state agencies have utilized proximity as an evaluation criterion, and DMS considers proximity a legitimate and potentially important criterion. However, the proximity that is usually referred to is proximity to the clients being served, not, as in this case, proximity to the Office of the Secretary. At first blush, the bid specifications allocate the highest score to cost and the second highest score to the proximity of the leased space to the Rhyne Building. The evaluation criteria in the RFP place almost as much weight on proximity to the Office of the Secretary (criterion 6), assigning 25 points, as on the rental amount bid (criterion 1), assigning 30 points. Yet, criterion 2 with its weight of 15 points may also relate to proximity to the Office of the Secretary by its use of vague terms about the area surrounding the building and the efficient and economical conduct of the Department's operations. It may well be, therefore, that the proximity to the Office of the Secretary offers a maximum score of 40 points, while the amount of rent only offers 30 points. Some state agencies awarding points for proximity include in their bid specifications a grid showing how many points are to be awarded for each incremental distance that a space being offered is from the target. Such a grid discloses to potential bidders in advance the number of points a bidder could expect to receive, for example, for a building located ten miles from the target as compared with how many points a bidder would receive for a building located one mile away. The Department's RFP contains no such grid system. In the RFP under consideration herein, it is certain that Koger Center would receive the maximum number of points allowable for proximity since the Office of the Secretary is located there. There is no requirement that any other bidder receive any points for the proximity criterion. Upon reviewing the bid specifications under consideration herein, Anagram Corporation timely filed its notice of protest and its formal protest challenging those bid specifications. By operation of law, the timely filing of the formal protest has caused the bidding process to be stayed until the resolution of this proceeding. Leonard Pepper is an officer and shareholder in Anagram Corporation. He is also an officer, shareholder or partner in other business entities which offer commercial space for rent in Tallahassee. Pepper and his companies have been leasing buildings to the State for the last 25 years. During that period, Pepper and his companies have won bid awards approximately 18 to 20 times. Neither Pepper nor Anagram has available office space within the geographic boundaries contained within the RFP. The Anagram building recently vacated by the Energy Office is still available. It, together with two other small buildings on adjacent parcels also owned by Anagram, would have sufficient space to respond to the RFP, but they are outside the geographic area specified. Gemini Associates, one of Pepper's related businesses, owns two buildings in what is known as the old FDLE Complex on Adams Street midway between the Capitol and the Governor's Mansion. One of those buildings has 27,000 square feet available and the other has 32,000 square feet available. Those buildings are also outside the geographic boundary specified in the RFP. Pepper has already made arrangements, however, for Gemini Associates to transfer title to those buildings to Anagram if Anagram so desires. Accordingly, Petitioner owns or controls property which meets the bid specifications but for the geographic boundaries contained in the RFP. The more potential bidders there are in a bid solicitation process, the more competitive the bidders will be. Accordingly, expanding the radius from the restrictive boundaries contained in the Department's RFP is likely to result in obtaining a better rental rate. The Department's choice of geographic boundaries after ascertaining that only Koger Center was known to have available space although not at competitive rates, after learning that those boundaries on two different occasions had produced only two bids, and after being cautioned by DMS that the boundaries were restrictive enough to preclude available quality space, leads to only one reasonable conclusion: that the Department intended to award the bid to the Koger Center if Koger submitted a bid. The bid specifications drawn by the Department were likely to achieve the Department's intended goal to have all of its organizational components physically housed in close proximity to the Office of the Secretary in the Koger Center, despite the requirement that the Department solicit competitive bids.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered sustaining Petitioner's protest to the bid specifications of proposed Lease No. 520:0062, declaring those bid specifications to be void, and terminating any bid solicitation process based upon those bid specifications. DONE and ENTERED this 12th day of May, 1993, at Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of May, 1993. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 93-0854BID Petitioner's proposed findings of fact numbered 1-6 and 9-11 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed finding of fact numbered 7 has been rejected as not being supported by the weight of the competent, credible evidence in this cause. Petitioner's proposed finding of fact numbered 8 has been rejected as being subordinate to the issues involved herein. Petitioner's proposed findings of fact numbered 12-14 have been rejected as not constituting findings of fact but rather as constituting conclusions of law, argument of counsel, or recitation of the testimony. Respondent's proposed findings of fact numbered 1-7, 9-11, 14-17, 22, and 23 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed findings of fact numbered 12 and 13 have been rejected as not being supported by the weight of the competent, credible evidence in this cause. Respondent's proposed finding of fact numbered 18 has been rejected as being subordinate to the issues involved herein. Respondent's proposed findings of fact numbered 19-21 and 24-28 have been rejected as not constituting findings of fact but rather as constituting conclusions of law, argument of counsel, or recitation of the testimony. Respondent's proposed finding of fact numbered 8 has been rejected as been irrelevant to the issues herein. COPIES FURNISHED: A. Eugene Lewis, Esquire Marlow V. White, Esquire Lewis & White Post Office Box 1050 Tallahassee, Florida 32302 Alfred O. Bragg, III, Esquire Robert C. Byerts, Esquire Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 William A. Friedlander, Esquire Friedlander & Mattox 3045 Tower Court Tallahassee, Florida 32303 Linda Loomis Shelley, Secretary Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 G. Steven Pfeiffer, General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100
The Issue Whether the Department of General Services should award state contracts for "walk-up convenience copiers" to Xerox Corporation in categories where Xerox was the only responsive bidder, or should reject Xerox's bid and solicit new bids on grounds that competitive bids were not received and there is no basis or excepting the award from competitive bid requirements; Whether the Department should disqualify Xerox's bid in one category for alleged material deviation from bid specifications where Xerox failed to initial a change in its bid price.
Recommendation Based on the foregoing, it is RECOMMENDED: That DGS reject Xerox's single responsive bids and readvertise; and That Xerox's bid for category Group-I, Type 3, Class 12, monthly rental acquisition plan, be rejected as nonconforming. DONE and ENTERED this 11th day of July, 1984, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 FILED with the Clerk of the Division of Administrative Hearings this 11th day of July, 1984.
The Issue Whether Respondent's action to reject all bids submitted in response to ITB 13-803-206, relating to the removal and replacement of the public address system at Pinellas Park High School, is illegal, arbitrary, dishonest, or fraudulent, as alleged in the Amended Petition.
Findings Of Fact On March 4, 2013, ITB was issued by Respondent for work related to the removal and replacement of the public address system at Pinellas Park High School in Largo, Florida. According to the Special Conditions portions of the ITB, the "scope" of the project is to "[p]rovide labor and materials to remove and replace the auditorium sound system as per plans and specifications by Keane Acoustics, Inc." The ITB was assigned bid number 13-803-206 by Respondent. Bids for the contract were to be submitted to Respondent by 3:00 p.m., April 11, 2013. Bids for the project were timely received from two companies. The first company, Becker Communications, Inc., d/b/a BCI Integrated Solutions (BCI), submitted a bid in the amount of $130,756.66. Petitioner submitted a bid in the amount of $116,000.00. There is a section of the ITB titled "special conditions." The special conditions provide in part that "[t]his is an ALL or NONE bid [and] [t]he entire contract shall be awarded to the lowest responsive and responsible bidder meeting the specifications." On April 22, 2013, Respondent posted a notice advising of its intent to award the contract to BCI. Although Petitioner submitted the lowest bid, Respondent determined that Petitioner's bid was non-responsive because the bid failed to include "proof of 5 years [of] experience with this type of work" as required by the special conditions of the ITB. Petitioner interpreted this provision as requiring five years of experience as a certain type of general contractor, which Petitioner had, whereas Respondent intended for the ITB to convey that five years of experience related to the removal and installation of audio equipment was the desired type of experience. Petitioner's failure to respond to the ITB in the manner contemplated by Respondent was a technical, nonmaterial irregularity.1/ Numbered paragraph six of the General Terms & Conditions of the ITB provides in part that Respondent "expressly reserves the right to reject any bid proposal if it determines that the . . . experience of the bidder, compared to work proposed, justifies such rejection." On April 24, 2013, Petitioner provided to Respondent a notice advising of its intent to protest the award of the contract to BCI. On May 3, 2013, Petitioner filed its formal protest challenging Respondent's intended action of awarding the contract to BCI. Petitioner's formal protest enumerated several grounds. Of particular concern to Respondent were Petitioner's assertions that the ITB was "inconsistent with Florida law since bidders [were] not required to submit a List of Subcontractors by the time of opening bid"2/ and that provisions of the ITB were ambiguous with respect to the type of experience required to qualify for bidding.3/ Prior to receiving Petitioner's protest, Respondent was unaware of the fact that its bid specifications governing the disclosure of subcontractors did not comply with Florida law. Upon consideration of Petitioner's grounds for protest, Respondent determined that the ITB, as alleged by Petitioner, failed to comply with section 255.0515, Florida Statutes (2012),4/ and that there was ambiguity in the language regarding the experience requirements for bidders.5/ Respondent refers to the problems with the ITB as "procedural errors." These procedural errors will be referred to herein as "irregularities" as this term is more in keeping with the nomenclature of this area of jurisprudence. Given the ITB's irregularities, Respondent decided to reject all bids. In explaining Respondent's rationale for rejecting all bids, Michael Hewett, Respondent's Director of Maintenance,6/ testified that "the [irregularities] were such that [they] potentially could give an unfair advantage to one bidder over another." As for the issue related to the requirements of section 255.0515, Mr. Hewett explained that neither of the two bidders submitted a listing of subcontractors. It would have been competitively disadvantageous to BCI if Petitioner were able to successfully argue that BCI should be disqualified for failing to provide a listing of subcontractors when Petitioner also failed to provide such listing. During the same approximate time that the ITB in the present case was issued, Respondent issued an ITB for nearly identical work to be performed at one of its other facilities (Palm Harbor). In all material respects, the Palm Harbor ITB was identical to the one at issue herein. Unlike the present case, BCI was the sole bidder for the Palm Harbor project and this distinguishing fact reasonably explains why Respondent did not reject BCI's bid for the Palm Harbor Project even though the ITB therein was plagued with the same irregularities found in the present case.7/
Recommendation Upon consideration of the above findings of fact and conclusions of law, it is RECOMMENDED: That the Pinellas County School Board enter a final order finding that the rejection of all bids submitted in response to ITB 13-803-206 was not illegal, arbitrary, dishonest, or fraudulent, and dismissing Tamco Electric, Inc.'s instant protest. DONE AND ENTERED this 16th day of October, 2013, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN 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 16th day of October, 2013.
The Issue Whether Respondent should sustain Petitioner's challenge to the preliminary determination to reject Petitioner's bid as not responsive to Respondent's Invitation to Bid No. SB 91C-284V and to award the contract to another bidder that submitted a higher bid?
Findings Of Fact Based on the record evidence, the following Findings of Fact are made: On March 12, 1991, Respondent issued Invitation to Bid No. SB 91C-284V (hereinafter referred to as the "ITB") through which Respondent solicited the submission of bids to supply Respondent with prestressed concrete poles for a one year period beginning May 16, 1991. The ITB was a multi-page document with various component parts. Bidders were instructed on the first page of the ITB to complete and "RETURN ONE COPY OF ALL BID SHEETS AND THIS [BIDDER ACKNOWLEDGMENT] FORM." They were advised elsewhere on the first page of the ITB that "[o]ne copy of all bid documents that ha[d] page numbers, and this executed Invitation to Bid [Bidder Acknowledgment] [F]orm [had to] be returned for the Bid to be considered." The advisement concerning the requirement that all numbered pages had to be returned for a bid to be considered was repeated at the bottom of each numbered page of the ITB. Directly beneath the Bidder Acknowledgment Form on the first page of the ITB was the following provision: This Invitation to Bid, General Conditions, Instructions to Bidders, Special Conditions, Specifications, Addenda and/or any other pertinent document form a part of this proposal and by reference are made a part thereof. The ITB further provided, among other things, that "[i]n the best interest of [Respondent], [Respondent] reserve[d] the right to reject any and all bids and to waive any irregularity in bids received." Petitioner and South Eastern Prestressed Concrete, Inc. (South Eastern) submitted the only bids in response to the ITB. In accordance with the ITB'S instructions, Petitioner completed and returned to Respondent the Bid Summary Sheet, on which it indicated its price offer. It also completed and executed the Bidder Acknowledgment Form and returned it, along with the entire first page of the ITB, to Respondent. Petitioner, however, failed to return, as part of its bid submittal, all of the numbered pages of the ITB. Omitted from Petitioner's submittal were numbered pages 3 and 4. These missing pages contained paragraphs A. through N. of the ITB's Special Conditions, which covered the following subjects: A. Scope; B. Delivery; C. Award; D. Term of Contract; E. Brand Name; F. Catalog Cuts; G. Estimated Quantities; H. Bid Exempt; I. Bidders Responsibility; J. Corrections; K. Joint Bidding, Cooperative Purchasing Agreement; L. Withdrawal; 1/ M. Minority Certification Application; and N. Public Entity Crimes. There was nothing on numbered pages 3 and 4 of the ITB that the bidder needed to fill out or sign. While paragraphs M. and N. of the ITB's Special Conditions did make reference to certain forms that the bidder had to complete and submit to Respondent, these forms did not appear on either numbered page 3 or numbered page 4. They were separate documents. Petitioner completed these forms and submitted them to Respondent pursuant to the requirements of the Special Conditions. Petitioner did not propose in its bid submittal any contract terms or conditions that were at variance with those set forth in paragraphs A. through N. of the ITB's Special Conditions. Petitioner did not intend to signify, by failing to return numbered pages 3 and 4, any unwillingness on its part to adhere to contract terms and conditions set forth on those pages. Of the two bids submitted in response to the ITB, Petitioner's was the lowest. A preliminary determination, though, was made to reject Petitioner's bid because Petitioner had not returned numbered pages 3 and 4 of the ITB and to award the contract to South Eastern as the lowest responsive bidder. It is this preliminary determination that is the subject of the instant bid protest filed by Petitioner.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Palm Beach County School Board enter a final order sustaining the instant bid protest and awarding to Petitioner the contract advertised in Invitation to Bid No. SB 91C-284V. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 24th day of June, 1991. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of June, 1991.
The Issue The issue in this proceeding is whether the Respondent, the Department of Insurance, acted illegally, arbitrarily, fraudulently, or dishonestly in rejecting all bids for lease #460:0119 and not awarding subject lease to Petitioner.
Findings Of Fact The Department of Insurance established a requirement to lease 5371 square feet of office space in Daytona Beach, Florida, and a "Request for Space Need" was approved by the Department of Management Services on February 11, 1998. The Department of Insurance subsequently issued a Request for Proposal (RFP) for lease #460:0119 (Respondent's Exhibit 1). A non-mandatory pre-bid conference was held on June 1, 1998, in Daytona Beach and two prospective bidders, Petitioner and Nova Village Market partnership attended. The RFP provided that proposals which did not meet all mandatory requirements of the RFP would be rejected as non- responsive. The RFP provided for evaluation criteria are awards factors. The awards factors totaled 100 points with no minimum point total required. Ten of the points were allotted for moving costs defined as the costs of relocating communications, networks, furniture and other equipment. This factor gave the current landlord an automatic 10-point advantage since there would be no relocation costs. Moving costs provisions tend to discourage the presentation of bids because the bidders have to overcome an automatic 10-point advantage provided the current landlord. The RFP also provided that all proposals could be rejected, however, such "rejection shall not be arbitrary, but be based on strong justification." None of the conditions of the RFP were questioned or challenged by interested parties. Two responses were received by the Department of Insurance in response to the RFP and these were opened in Respondent's Tallahassee office on July 8, 1998, by Mr. Kip Wells of the Department. One was received from the current landlord, Nova Village Partnership, hereafter Nova, and the other from the Petitioner. The Nova proposal was deemed non-responsive. Neither Nova nor Petitioner contested the determination that Nova's proposal was non-responsive. Only one responsive proposal, the Petitioner's proposal, remained. On July 9, 1998, the Department representative, Mr. Kip Wells, called Petitioner to schedule an appointment for 9:00 a.m., on July 10, 1998, to visit and evaluate the proposed facility. No persons from the Department appeared at the scheduled appointment. At 10:45 a.m., on July 10, 1998, Kip Wells called Petitioner to say that since Petitioner's proposal was the only responsive proposal received, and that "all bids" were being rejected. Mr. Wells testified at hearing. His reason for rejecting the remaining bid was: When I saw that it was obvious the current landlord was not going to be very cooperative, I decided that one choice was not enough. If we were going to have to make a move, we needed more than one thing to choose from. So, I immediately - - since I had already set up with local people in Daytona to tell them that I was coming down to evaluate the bids, I sent them an E-mail and told them that I would not be meeting the following day to evaluate the bids. Mr. Wells decided to reissue the RFP without any moving costs criteria, and redistribute those 10 points among the other award factors. Petitioner filed a Notice of Intent to Protest and then a Formal Protest, both in a timely fashion. There is no state policy prohibiting the award of a lease to a sole bidder on a RFP. The "Leasing Policy" of the Department of Insurance states that "The Lease Administrator, with assistance from the Division employees, will establish bid or quote specifications. These specifications will include special needs for the Division(s) as well as the evaluation criteria upon which to evaluate the proposals." Neither the Department's Lease Policy (Petitioner Exhibit 3) nor the State's Real Property Leasing Manual (Petitioner's Exhibit 4) give the Lease Administrator the authority to reject or evaluate bid responses. Neither does he have a vote in the bid evaluation process. His responsibility is to coordinate the process. Randall Baker, Manager of Private Sector Leasing of the Bureau of Property Management of the Department of Management Services (hereinafter DMS), testified. The DMS prepares a manual as a guideline for user agencies to assist in the leasing of property. The DMS manual is not binding on agencies and DMS has no review oversight; however, their comments on agencies' leases are reviewed by the state auditing authorities and failure to follow the guidelines can result in audit criticism. Baker confirmed that the agency's written procedures as outlined in the RFP were consistent with the DMS guidelines. The DMS manual states as follows regarding the receipt of only one responsive proposal: When only one responsive proposal is received it may be considered and accepted providing the following conditions are documented: Adequate competition was solicited. The rate is within established rental rate guidelines. The proposal meets stated requirements. The proposal was processed as though other proposals were received. The Petitioner's bid was responsive to the RFP and the lease rate bid by the Petitioner was less than the average rate for state leases in the Daytona area and less than the amount budgeted by the Department for this lease. The lease rate by the Petitioner was reasonably priced and competitive. Although the agency failed to complete the process as envisioned, see paragraph 20 below, this was in no way the fault of Petitioner. The Department's leasing policy requires that the lowest and best response to an RFP be determined through cost analysis and evaluation by an evaluation committee. Mr. Wells did not forward Petitioner's bid to or discuss with the evaluation committee Petitioner's bid, but unilaterally rejected it. It was clear from Mr. Wells' testimony that this was his individual decision and was based upon his personal belief that it was the best thing to do.1 At hearing, the stated justification for rejecting "all bids" was that it gave the Department the opportunity to delete the requirement of moving costs from the awards factors; however, the evidence does not indicate that the moving cost provision result in non-competitive bids. The sole responsive bidder was within the local lease price range and within budget. Neither the Respondent nor DMS has established a policy prohibiting the acceptance of a sole responsive bid if there is competition solicited. The Department of Insurance has accepted a sole bid on at least one project in the past. There was no evidence that the RFP was not an open and fair competition. The evidence shows that it was properly advertised, that all conditions were known, and that all interested parties had an equal opportunity to participate. In sum, there was adequate competition in submitting the bids. Mr. Baker testified regarding the policy of DMS. The DMS policy is that if there is one responsive bidder, there has been competitive bidding. The RFP provides that the Respondent may reject all bids if it has strong justification. See paragraph 5 above. Mr. Baker also provided examples of "strong justification for rejecting proposals." His examples include facilities which are proposed outside the required geographic area, prices considerably in excess of state guidelines and agency budgets, specification changes due to modification of the agency's program requirements, and "intervening external forces." No evidence establishing a strong justification for rejecting the Petitioner's bid was presented. Without completing the process and evaluating the Petitioner's bid, the agency never considered whether the bid was in the state's best interest. However, this was not the fault of the Respondent, and the agency's failure to follow its procedures should not inure to its benefits. Further, Because there was no minimum score required on the evaluation criteria of the RFP, there is no need to evaluate Petitioner's proposal because it is the only responsive proposal. For all the reasons stated above, the rejection of Petitioner's bid was contrary to the terms of the RFP, contrary to state policy, and arbitrary.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is, RECOMMENDED: That a Final Order be entered which finds that: Respondent's actions in rejecting Petitioner's responsive bid were arbitrary; The Respondent did not follow the requirements set forth in the Department of Insurance Leasing Policy, nor the Department of Management Services Real Property Leasing Manual, or the Request for Proposal itself; That no adverse interest to the State or the Department would have occurred had Petitioner's responsive bid been accepted; and therefore, Petitioner's claim shall be upheld as the lowest cost and best proposal for RFP #460:0119, and that the Department of Insurance shall award Petitioner Lease #460:0119. DONE AND ENTERED this 30th day of October, 1998, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 30th day of October, 1998.
The Issue Whether a bid dispute arising in connection with an emergency bid letting is an appropriate subject for formal administrative proceedings, in the absence of an administrative challenge to the fact of the emergency?
Findings Of Fact The parties stipulated that DOT had "received [Baxter's] notices of protest dated September 23, 1983, October 14, 1983, and December 16, 1983, protesting the Department of Transportation's determination that Baxter's Asphalt was not the lowest responsible bidder on this project and petitioning for formal administrative hearings." Baxter's bid was indeed the apparent low bid on Job No. 53030-3511, but DOT has taken the position that Baxter is not a responsible bidder, and has disregarded Baxter's bid on that account. The DOT has moved beyond proposed action and has actually awarded the contract to Gulf, the second low bidder. The parties stipulated: Pursuant to Section 120.53(5)(c) , Florida Statutes, the Department has decided to proceed with the award and execution of the contract with Gulf Asphalt Corporation in order to avoid what the Department perceived as an immediate and serious danger to the public health, safety, or welfare. DOT executed the contract with Gulf on January 6, 1984. As grounds for executing the contract, notwithstanding the pendency of formal administrative proceedings, the Secretary of the DOT stated: ...The conversion of this two lane roadway to a four lane facility is badly needed to increase the traffic capacity and improve the safety of the highway for the traveling public. This section of roadway has a structural rating of 35 which places it in the "Critical" range . . . [and] has an accident ratio of 1.244 which is almost 25 percent above the average rate. dditional funds were appropriated by the Florida Legislature so that work could proceed without delay. It is also imperative that these projects proceed in an orderly fashion to maximize the effective use of [DOT] construction in spection and supervisory personnel. Letter from Secretary Pappas to Baxter, December 23, 1983. Baxter does not concede that an emergency exists with respect to Job No. 53030- 3511, but did concede that the existence of an emergency was for the agency head to determine, subject only to judicial review. In its petition for formal administrative proceedings, Baxter did not raise the question whether an emergency exists. For purposes of the present administrative proceeding, there is no dispute or issue as to the existence of the emergency.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That respondent dismiss petitioner's formal written protest as moot. DONE and ENTERED this 9th day of February, 1984, in Tallahassee, Florida. ROBERT T. BENTON II Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of February, 1984. COPIES FURNISHED: Frank A. Baker, Esquire Roberts and Baker P. O. Box 854 Marianna, Florida 32446 Robert I. Scanlan, Esquire Department of Transportation Haydon Burns Building, MS-58 Tallahassee, Florida 32301 Paul A. Pappas, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301
Findings Of Fact The Bid The Department, through an Invitation to Bid (ITB), sought to secure a contract for the management of the Dade County Public Health Unit parking lot located at 1340 N.W. 14th Street, Miami, Florida. By April 1, 1986, the bid opening date, bids had been filed with the Department on behalf of Kinney, Floyd, and LaSalle Parking, Inc. (LaSalle). The Department's selection team reviewed the bids and recommended that the contract be awarded to Kinney. Consistent with the selection team's recommendation, by letter of April 2, 1986, the Department advised the unsuccessful bidders that the contract had been awarded to Kinney and advised them of their right to protest the award. Floyd filed a timely protest of the award and alleged, inter alia, that Mr. Shera, the Department's Business Manager, had outlined the criteria to be used in evaluating the bids as including a consideration of the bidder's ability to: Provide parking services to . . . employees and clients for the lowest monthly rate. 3/ Upon receipt of Floyd's protest, the Department reevaluated the bids and the ITB specifications, and concluded that the ITB specifications contained an ambiguity which had resulted in a lack of uniform bid response. Therefore, the Department rejected all bids and rebid the contract. 4/ Pertinent to this case the bid specifications provided. SPACES AVAILABLE: 13 Uncovered Reserved, present rate $10.50/ month. 22 Covered Reserved, present rate $10.50/ month. 115 Reserved for Health Department Employees, present rate $7.35/month. 3 Handicapped 45 Daily rental 45 Daily rental 198 TOTAL CURRENT RATE: Reserved Parking $10.50/month. Health Department Employees $7.35/month Health Department Clients 50 percent discount on daily rates. Daily rates: 1st hour $1.00 Additional 1/2 hour $.50 All day $2.50 3:00 P.M. 7:00 P.M. $1.50. MANAGERIAL RESPONSIBILITIES: 3. That in consideration for such services, the OWNER will allow the MANAGER the exclusive right to charge, collect the established fees for all those wishing to have their cars parked upon the parking premises. All fees must be approved by the owner. And, the mandated Bid Sheet required a response to three proposals: PROPOSAL FOR OPERATING THE LOT: PROPOSED RATES: PROPOSED NET INCOME DISTRIBUTION: Kinney's response to the ITB proposed to retain the current rates and offered a net income distribution of 25% to Kinney and 75% to the Department. Floyd's response to the ITB proposed rates of: RESERVED PARKING : $9.35/MONTH HEALTH DEPARTMENT EMPLOYEES: $6.24/MONTH HEALTH DEPARTMENT CLIENTS : 50% DISCOUNT ON DAILY RATES DAILY RATES : 1ST HOUR $1.00 EACH ADDITIONAL 1/2 HR. $.50 : MAXIMUM ALL DAY $2.50 : 3PM - 7PM $1.50 and a net income distribution of 30% to Floyd and 70% to the Department. While it was the Department's intent to maintain the current rates and to evaluate the bids primarily on a net income distribution basis, the bid specifications were ambiguous and subject to an interpretation which would permit a bid based on different parking rates, as well as a variable distribution basis. Accordingly, because of the ambiguity in the bid specifications, all bids submitted in response to the initial letting should be rejected. The Rebid On rebid, the Department amended its bid specifications to clarify its intent that the current rates would remain in effect, and delineated the "determining factors for bid award. Specifically, the rebid specifications provided: SPACES AVAILABLE: 13 Uncovered Reserved, present rate $10.50/ month. 22 Covered Reserved, present rate $10.50/ month. 115 Reserved for Health Department Employees, present rate $7.35/ month. 3 Handicapped. 45 Daily rental CURRENT RATES: Reserved Parking $10.50/month Health Department Employees $7.35/month Health Department Clients 50% discount on daily rates. Daily rates: 1st hour $1.00 Additional 1/2 hour $.50. All day $2.50 3:00 P.M. - 7:00 P.M. $1.50 The rates will remain the same. The owner will have full jurisdiction in raising or lowering said rate any time during the contract period. * * * Determining Factors for Bid Award: Unarmed parking attendant (outline measures to be taken to secure vehicles in lot). Experience (outline number of years in parking business as parking lot management firm.) Proposed net income distribution (percent split). Provide bilingual parking attendant (Spanish and English, French desirable but not mandatory). By May 14, 1986, the rebid opening date, Kinney, Floyd and LaSalle were the only bidders to respond to the ITB. The Department's selection team reviewed the bids and again recommended that the contract be awarded to Kinney. Accordingly, by letter of June 6, 1986, the Department advised the unsuccessful bidders of its decision to award the contract to Kinney and of their right to protest the award. Floyd filed a timely notice of protest and formal written protest of the proposed award. Floyd's formal protest, filed June 6, 1986, asserted that: Floyd & Associates Protection Corp. submitted the lowest responsive, responsible bid, and should be awarded this contract - Bid No. DCPHU 4/86. We protest the recommendation of the Parking Lot Management Bid Selection Team that Kinney Systems, Inc. be awarded this contract. The bidding process is supposed to protect small companies from the powers of a large company. At all times, the purchasing officers should operate with integrity and fairness to all suppliers. Floyd & Associates has a proven track record and should not be looked upon as inferior because we haven't been in business as long as Kinney. However, if you judge us on an equal and unbiased basis, Floyd should be awarded this contract. We have enclosed exhibit A as a true comparison as to the merits of both companies. 5/ Floyd & Associates should be awarded this contract; we deserve a piece of the American Dream. The Reevaluation Floyd's charge of racial discrimination, planted by Floyd's first protest and tacitly reasserted by it's second protest, was not lost on the Department. Notwithstanding the unsubstantiated nature of Floyd's charge, the Department, without notice to Kinney, purportedly reevaluated the bids. By letter of July 2, 1986, the Department advised Kinney, without explanation, that based on the "selection team's" recommendation the contract had been awarded to Floyd. 6. Kinney filed a timely notice and formal protest of the Department's action. The Department contends that Section 120.53(5)(d), Florida Statutes, authorized its reevaluation of the bid to amicably resolve the protest. The Department's reliance on section 120.53(5)(d), as permitting its unilateral decision to vitiate its prior award of the contract to Kinney, is misplaced. Section 120.53(5), Florida Statutes, establishes a statutory framework for resolution of protests arising from the contract bidding process. Pertinent to this case, section 120.53(5) provides: Upon receipt of a notice of protest which has been timely filed, the agency shall stop the bid solicitation process or the contract award process until the subject of the protest is resolved by final agency action, unless the agency head sets forth in writing particular facts and circumstances which require the continuance of the bid solicitation process or the contract award process without delay in order to avoid an immediate and serious danger to the public health, safety and welfare. The agency, on its own initiative or upon the request of a protestor, shall provide an opportunity to resolve the protest by mutual agreement between the parties within 7 days, excluding Saturdays, Sundays, and legal holidays, of receipt of a formal written protest. If the subject of a protest is not resolved by mutual agreement within 7 days, excluding Saturdays, Sundays and legal holidays, of receipt of the formal written protest and if there is no disputed issue of material fact, an informal proceeding shall be conducted pursuant to s.120.57(2) and applicable agency rules before a person whose qualifications have been prescribed by rules of the agency. If the subject of a protest is not resolved by mutual agreement within 7 days, excluding Saturdays, Sundays, and legal holidays, of receipt of the formal written protest and if there is a disputed issue of material fact, the agency shall refer the protest to the division for proceedings under s. 120.57(1). Under the provisions of section 120.53(5)(c), the Department was bound, absent circumstances not present here, to stop the bid solicitation process pending resolution of Floyd's protest by final agency action. Under the framework of 120.53(5)(d), final agency action could only occur through mutual agreement of the parties; an informal proceeding pursuant to Section 120.57(2) Florida Statutes, or a formal proceeding pursuant to Section 120.57(1), Florida Statutes. See: Cianbro Corp. v. Jacksonville Transportation Authority, 473 So.2d 209 (Fla. 1st DCA 1985). The provisions of section 120.53(5)(d), which provide an opportunity to resolve a protest by "mutual agreement between the parties," is not an invitation to the Department to unilaterally reevaluate its decision. Such resolution can only occur "between the parties"; which must include, at a minimum, the successful bidder, the protestant, and the Department. Since Kinney did not participate or concur in the Department's action, and there existed disputed issues of material fact, Floyd's protest could only be resolved by a formal 120.57(1) proceeding. Accordingly, the Department's subsequent decision to award the contract to Floyd was improper. 7/ The Bidders Kinney, which has operated the subject parking lot under contract with the Department for the past 6 years, is one of the world's largest parking companies, with over 50 years of experience in parking lot operations. Kinney presently parks approximately 20,000,000 automobiles annually in facilities it owns, leases or operates under contract. These facilities range in size from fewer than 50 spaces to those with thousands of spaces. Currently, Kinney operates 20 lots in south Florida, which contain 16-17,000 spaces and generate in excess of $20,000,000 in annual receipts. The proof establishes that Kinney has the requisite experience to operate the subject facility, properly supervise its operations, and accurately account for the proceeds generated by the parking operation. Kinney's rebid proposed to operate the subject parking facility predicated on a net income distribution of 25% to Kinney and 75% to the Department. The protestant, Floyd, was established in August 1982 and, until approximately November 1985, had been exclusively involved in providing security services. In November 1985, Floyd received a contract from the Immigration and Naturalization Service (INS) to manage its parking garage in Miami, Florida; which accounts for Floyd's total experience in parking lot management. Under Floyd's agreement with INS, it still operates as basically an unarmed security service. Since the majority of patrons utilizing the INS garage are clients of INS, no fees are collected. In the unusual event that the patron's ticket is not validated by INS and a fee is due, Floyd's simply collects the money and immediately gives it to an INS official. Floyd offered no evidence that it has any experience operating an in-and-out lot similar to the subject parking lot, or that it has any established or proposed methods of management, supervision and accounting controls necessary to service the Department's parking lot. Floyd proposed, however, to operate the subject parking lot based on a net income distribution of 20 percent to Kinney and 80 percent to the Department. 8/ The Department's selection team evaluated the responses of Kinney and Floyd, and recommended that the contract rebid be awarded to Kinney even though the net income differential proposed by Floyd would facially generate more income for the Department. The selection team's recommendation was premised on its conclusion that given the experience of Kinney, juxtaposed with the inexperience of Floyd, it could expect a greater return from Kinney even with the lower net income differential. Of the 198 spaces in the Department's parking lot, only 45 are reserved for daily rental. The balance of the spaces are reserved on a fixed monthly rate for Department and other employees. Accordingly, the ability to maximize revenue in the lot is directly dependent upon the operator's supervision and control of the 45 daily spaces. Kinney has demonstrated its ability to insure that those spaces remain open for their intended purpose, to collect and accurately account for all funds collected, and to maximize revenues. Floyd on the other hand has no such experience and offered no evidence that it had any inkling of what was required to operate such a parking lot or any plans to acquire such expertise. The selection team's recommendation was therefore reasonable, and the Department's decision to award the contract to Kinney was premised on an honest exercise of its discretion. At hearing, Floyd chose not to participate and, accordingly, offered no evidence discrediting the Department's award to Kinney or supporting its entitlement. The Department did offer evidence, however, to support its decision to "re-award" the contract to Floyd and thereby vitiate its initial decision. The thrust of the Department's evidence was two fold: a claim of mismanagement by Kinney of the subject parking lot and a claim that the selection team incorrectly assumed Floyd was not properly licensed. The Department's assertions lack substance and conviction. The Department's claims of mismanagement are founded on losses occasioned in the operation of the parking lot from June through November 1985, the theft of a car from the parking lot, and alleged damages to four cars caused by the mechanical arm which controls ingress to the lot. The losses in revenue were not, however, the fault of Kinney. These losses resulted from Kinney's inability to use the 45 daily spaces because the Department had issued over 250 gate cards for its employees. Despite Kinney's protests, it was not until December 1985 that the Department cooperated in solving this problem by limiting the number of gate cards, and the severe over crowding in the lot was eliminated. The only other factor bearing on lost revenue was some theft by a Kinney gate guard; however, Kinney, consistent with its routine practice, used "shoppers" to police the integrity of its employee, and the employee was caught and discharged. Rather than reflect unfavorably on Kinney, its discovery of the theft is evidenced of its good supervision. The Department's remaining claims of mismanagement are equally without merit. The one car stolen from the lot during Kinney's tenure was that of a Department employee who had left her keys in the car. The damage, if any (none was shown), to four cars by the mechanical arm, was occasioned by one car following another car too closely into the lot. The mechanical arm was not shown to function improperly. The foregoing facts, together with the assurances of Mr. Shera, the Department's local manager, that Kinney and the Department have enjoyed a very favorable working relationship over the past six years, renders the Department's assertions of mismanagement not credible. The Department's final basis to vitiate its award to Kinney is predicated on its assertion that its selection team incorrectly concluded that Floyd did not hold an occupational license to operate a parking lot. Again, the Department's assertion is not credible. The proof is that Floyd's licensure was not the motivating factor in the selection team's award of the contract to Kinney. The team's decision was premised on Kinney's superior qualifications and perceived ability to generate more revenue for the Department, compared with the team's well founded concerns of Floyd's ability to perform. As importantly, Kinney advised Mr. Shera by letter of May 15, 1986, of its protest to Floyd's qualifications because of Floyd's purported failure to have an occupational license at the time of bid submittal. Mr. Shera, on behalf of the Department, awarded the contract to Kinney by letter of June 5, 1986, and did not disqualify Floyd. Accordingly, the evidence supports the conclusion that the Department did not incorrectly exclude Floyd because of any licensure requirement. The totality of the evidence, including the demeanor of the witnesses, compels the conclusion that the Department's decision to support Floyd's bid was occasioned by its desire to avoid any appearance of discrimination, as opposed to a fair exercise of its discretion. Such conduct is arbitrary and capricious. Accordingly, the evidence supports the award of the subject contract to Kinney.
Findings Of Fact In January, 1985, Petitioner acquired an existing retail florist business located at 416 Indiantown Road, Jupiter, Florida. Petitioner's business occupied one-half of the building located at that address. The remainder of the building housed La Casa Mexican Restaurant and a Metro Cellular Phone business. At the time that Petitioner acquired the business, the parking lot for the building consisted of 15 spaces and was shared by all three businesses. Six of those spaces were located behind the building and were accessible from an alley. Nine of those spaces, including the handicapped space, were located in front of the building and were accessible from Indiantown Road. The parking lot for the building constituted a legal non-conforming use, that is, it was permitted to exist without meeting current code requirements of the local government. The business lease entered into by the Petitioner on January 21, 1985, for a term of thirty months was essentially a "standard form" lease. However, Petitioner as Lessee and Petitioner's Lessor specifically added to the standard lease language a twenty-fourth clause which provided as follows: Twenty-Fourth: In the event Indiantown Road is widened during the term of this lease and the widening project results in a loss of more than two of the present ten [sic] parking spaces in front of the building, then the rental payments under this lease can be renegotiated by the parties, and if such renegotiations do not result in terms satisfactory to the tenant, the tenant will have the right to cancel this lease with thirty days notice to the landlord. Accordingly, Petitioner specifically retained the right to either stay or vacate the leased premises if the road-widening project resulted in a loss of more than two of the parking spaces in front of the building. The Department subsequently commenced its road-widening project which resulted in the Department's "taking" of two of the parking spaces in front of the building. The Department paid Petitioner's claim for business damages as a result of the loss of two parking spaces in the condemnation proceeding involving Petitioner and the property owner. After the loss of the two parking spaces, the front parking lot was re- designed so as to more closely comply with local code requirements. That re- design of the parking spaces reduced the number of spaces in front of the building by an additional two, resulting in a total reduction of parking spaces in front of the building by four. The re-design left a total of five spaces in front of the building, including a handicapped space. Although a local government can require a legal non-conforming use to be made conforming under certain circumstances, there is no evidence that the local government required the owner of the property leased by Petitioner to re- design the front parking lot according to code requirements. Accordingly, there is no showing that the deletion of the two additional parking spaces was a direct result of the road-widening project. On approximately July 1, 1991, Petitioner moved its retail florist business to 323 West Indiantown Road, Jupiter, Florida. Petitioner relocated its business at that time because Petitioner's president believed that business "...was at a point where it was just going to be falling off." (R. 37). The relocation of Petitioner's business was caused by Petitioner's decision to conduct its business from a different location. Petitioner did not move its business as a direct result of the Department's acquisition of two parking spaces. Accordingly, Petitioner is not eligible for relocation benefits.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying Petitioner's application for relocation benefits. DONE and ENTERED this 3rd day of November, 1993, at Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of November, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-7265 The Department's proposed findings of fact numbered 5-8 and 10 have been adopted in substance in this Recommended Order. The Department's proposed findings of fact numbered 1 and 2 have been rejected as being subordinate to the issues involved herein. The Department's proposed findings of fact numbered 3, 4, and 9 have been rejected as not constituting findings of fact but rather as constituting argument of counsel or conclusions of law. COPIES FURNISHED: Ben G. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Attn: Eleanor F. Turner, Mail Station 58 Tallahassee, Florida 32399-0458 James R. Clodfelter Authorized Representative Acquisition Consultant Enterprises, Inc. Boca Bank Corporate Center 7000 West Palmetto Road, Suite 503 Boca Raton, Florida 33433 Charles Gardner, Esquire Department of Transportation 605 Suwannee Street, Mail Station #58 Tallahassee, Florida 32399-0458
