Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: The Request for Proposals Through the issuance and distribution of a Request for Proposal and/or Proposal Submittal Form (RFP), the Department's Region IV solicited the submission of proposals from prospective lessors interested in leasing to the Department office space in an area (more particularly described in the RFP) in Broward County. The RFP contained the following "General Specifications and Requirements," among others: Net square footage required: 9,196 (within plus 3 percent tolerance) measured in accordance with the Standard Method of Space Measurement (Attachment A). NOTE: restrooms and mechanical rooms are not to be included in calculating net rentable square footage. BIDDER RESPONSE: Net square feet available (Space offered must be within the +3 percent required) . . . Space to be located in the County of Broward, Florida depicted in the following boundaries: NORTH: N.W. 2nd Street, N.E. 2nd Street SOUTH: Davie Boulevard EAST: Federal Highway, U.S. 1 WEST: S.W. 4th Avenue, N.W. 7th Avenue (See attached map (Attachment B). ) Proposals (bids) shall be considered responsive if the space is within or abutting the specified boundaries. Space for purpose of this paragraph means the net square footage to be leased. BIDDER RESPONSE: (address of proposed location- mark location on Attachment B also). Include zip code. The offered space represents entire building. percent of the Space to be made available on July 1, 1997 or within 90 days after notification of award of proposal, whichever occurs last. . . . Term of lease: Five (5) years with an option to renew for an additional Five (5) Years. Services: Full Services to be provided by lessor, including utilities, interior and exterior maintenance, recycling services, garbage disposal, janitorial services and supplies as specified in Attachment C. . . . Photographs and Floor Plans: As part of the bidder's submittal, bidders are to provide: A clear photograph or prospectus showing exterior front, sides and rear of the proposed facility. A floor plan to scale . . . showing present configurations with measurements that equate to the net rentable square footage. The final floor plan will be as described in the specifications and as identified through consultation with the Department. BIDDER RESPONSE: Floor Plan and Photograph(s) are included as a part of this proposal. . . . Existing building. The proposed space must be an existing building. To be considered as existing the proposed space must be dry and measurable (capable of being physically measured). To be considered as "Dry and Measurable" the construction area of all floors of the building including bathrooms, basement, mechanical equip- ment rooms, stairways, penthouses, and the like must be enclosed with floor, finished roof and exterior walls with windows and doors installed, so that the interior of the building will remain dry during adverse weather conditions. The areas mentioned must be clearly defined within the building, but are not required to be completed, to allow the actual occupiable (rental) area of the building to be measured at the time of pro- posal submittal. Renovations to bring the facility into compliance with all applicable Federal, State and local codes and regulations and/or to meet the desired arrangements are permitted, if carried out in accordance with prescribed procedures. The facility must comply or be renovated to comply with the requirements for Accessibility by Handicapped Persons as mandated by Chapter 553, Sections 553.501-553.513, Florida Statutes, and the latest Accessibility Requirements manual published by the Department of Community Affairs, (DCA) Florida Board of Building Codes and Stan- dards, as well as the requirements of Public Law 101-336, July 26, 1990 known as the "Americans with Disabilities Act of 1990" Appendix A to Part 36, "Standards for Accessible Design." The Lessor agrees that the de[v]ised premises now conform, or that, prior to Lessee's occupancy, that said premise[s] shall, at the Lessor's expense, be brought into compliance with all specified requirements. (Attachment D). Successful bidder will provide a floor plan including a site plan of the parking areas for ADA review. . . . The RFP contained the following "Space Requirement Criteria," among others: Plans review fees for State leased buildings: Floor plans are to be a joint effort of departmental staff and the successful bidder. The successful bidder is to provide architectural services by a licensed architect to prepare renovation plans per the 1991 Edition of NFPA 101. The final floor plan is subject to department determination and State Fire Marshall review and approval. . . . See floor plan, Attachment H, for suggested configuration of offices and rooms. 5 Offices not to exceed 120 sq. ft. each- 600 net sq/ft 55 Offices not to exceed 64 sq. ft each- 3,520 net sq/ft File Areas- 84 net sq/ft Reception Areas- 300 net sq/ft Conference Room- 550 net sq/ft Storage Areas with floor to ceiling shelves- 180 net sq/ft Copy and Mail Distribution Room- 100 net sq/ft Employee Lounge with sink/cabinets/counter top- 90 net sq/ft Inactive File Room w/open shelves- 2,000 net sq/ft Drug Testing Room*- 100 net sq/ft MIS & Office Automation Terminals and Printers- 255 net sq/ft Firearm Storage- 40 net sq/ft Internal Circulation- 1,377 net sq/ft *Must include: Adjoining restroom, stainless steel sink, viewing window between testing room and restroom, storage shelves and cabinets, and dead bolt lock on testing room. This bathroom is additional to restrooms referenced under "Restrooms" . . . 8. Restrooms: (must meet requirements of Americans with Disability Act of 1990 and the requirements of the Accessibility by Handicapped Persons, Section 553.504(12-13), Florida Statutes- Attachment D): Waterclosets- 1 Men's (Public); 1 Men's (Staff); 1 Women's (Public); 1 Women's (Staff) Urinals- 1 Men's (Public); 1 Men's (Staff) Lavatories w/mirrors- 1 Men's (Public); 1 Men's (Staff); 1 Women's (Public); 1 Women's (Staff) Note: If space is offered on more than one floor, restroom facilities must be provided to code on each floor in conformance with occupancy and code requirements whichever is greater. . . . The RFP contained the following "General Provisions," among others: 2. All bids accepted by the State are subject to the State's terms and conditions and any and all additional terms and conditions submitted by bidders are rejected and shall have no force and effect. . . . 5. All Proposal sheets must be executed and submitted in a sealed and titled envelope, enclosed in an outer envelope. The face of the inner envelope shall contain, in addition to the Department's address . . ., the date and time of the bid opening and the lease number. PROPOSALS NOT SUBMITTED ON THIS PROPOSAL SUBMITTAL FORM SHALL BE REJECTED. All proposals are subject to the conditions specified herein. Those which do not comply with these conditions are subject to rejection. Each proposal shall be signed by the owner(s), corporate officers, or legal representative(s). The corporate, trade, or partnership title must be either stamped or typewritten beside the actual signature(s). . . . The Department agrees to enter into a lease agreement based on submission and accep- tance of the proposal in the best interest of the Department and the State. The Department reserves the right to reject any and all proposals for reason which shall include, but not be limited to, the agency's budgetary constraints; waive any minor infor- mation or technicality in proposals, to accept the proposal deemed to be the lowest and in the best interest of the State, and if necessary, to reinstate procedures for soliciting competitive proposals. . . . Late proposals, modification of proposals, or withdrawal of proposals: Any proposal received at the office designated in the solicitation after the exact time specified for receipt will not be considered and will be returned unopened. A proposal may be withdrawn in person by a proposer or his/her authorized representative provided his/her identity is made known and he/she signs a receipt for the proposal, but only if the withdrawal is made prior to the exact time set for the receipt of proposals. . . . Sealed proposals will be received until 10:00 a.m. on August 21, 1996 by Maria L. Cortes at 3810 Inverrary Blvd., Bldg. C, Suite 101 Conference Room, Lauderhill, FL 33319, at which time all proposals will be publicly opened and read aloud. Notification of award will be made within 30 calendar days and shall be given either by posting the proposal tabulation at the location where the bids were opened or by certified United States mail, return receipt requested. . . . A preproposal conference . . . will be held at 10:00 a.m. on July 17, 1996 at 3810 Inverrary Blvd., Bldg C, Suite 101, Conference Room, Lauder- hill, FL 33319 "Attachment A" to the RFP was the "Standard Method of Space Measurement," which was referenced in the "Net square footage required" provision of the RFP's "General Specifications and Requirements." "Attachment A" read as follows: STANDARD METHOD OF SPACE MEASUREMENT The purpose of this standard is to permit communication and computation on a clear and understandable basis. Another important purpose is to allow comparison of values on the basis of a generally agreed upon unit of measurement (net square footage). It should also be noted that this standard can and should be used in measuring office space in old as well as new buildings, leased office space as well as State-owned office space. It is applicable to any architectural design or type of construction because it is based on the premise that the area being measured is that which the agency may occupy and use for its furnishings and its people. This standard method of measuring office space measures only occupiable space, undistorted by variance in design from one building to another. It measures the area of office building that actually has usable (rental) value and, therefore, as a standard can be used by all parties with confidence and with a clear understanding of what is being measured. Area measurement in office buildings is based in all cases upon the typical floor plans, and barring structural changes which affect materially the typical floor, such measurements stand for the life of the building, regardless of readjustments incident to agency layouts. All usable (rentable) office space, leased or State-owned, shall be computed by: Measuring to the inside finish of permanent outer building walls to the office side of corridors and/or other permanent partitions, and to the center of partitions that separate the premises from adjoining usable areas. This usable (rentable) area shall EXCLUDE: bathrooms, stairs, elevator shafts, flues, pipe shafts, vertical ducts, air-conditioning rooms, fan rooms, janitor closet, electrical closets-- and such other rooms not actually available to the tenant for his furnishings and personnel--- and their enclosing walls. No deductions shall be made for columns and projections necessary to the building. Pre-Proposal Conference A pre-proposal conference was held, as scheduled, to give prospective lessors the opportunity to receive from the Department answers to questions they had regarding the RFP. The Department emphasized to those prospective lessors who attended the pre-proposal conference that, as indicated in the "Net square footage required" provision of the RFP's "General Specifications and Requirements," it would not accept a proposal offering space with a "net square footage" of less than 9,196 square feet. Petitioner did not send a representative to the pre-proposal conference. Petitioner's Proposal Two proposals were submitted in response to the RFP. One of these proposals was submitted by Petitioner, which offered the Department the entire space in a two-story building located at 609 South Andrews Avenue in Fort Lauderdale, Florida (Petitioner's Building). In its proposal, Petitioner indicated that the "net square feet available" in its building was 9,370. Along with its proposal, Petitioner submitted to the Department existing and proposed floor plans. There are currently two restrooms on the first floor of Petitioner's Building and two restrooms on the second floor of the building. None of these restrooms meets the accessibility requirements prescribed in the RFP. It is Petitioner's intention, if it is awarded the lease by the Department, to eliminate these existing restrooms and replace them with restrooms to be constructed adjacent to the existing structure in space that is not now, nor was it at the time of the submission of Petitioner's proposal, "Dry and Measurable," as that term is defined in the "Existing building" provision of the RFP's "General Specifications and Requirements." These intentions of Petitioner's were reflected in the materials Petitioner submitted to the Department along with its proposal. The Department's Initial Evaluation of the Responsiveness of the Two Proposals Douglas Sweredoski is the Facilities Services Manager Assistant for the Department's Region IV. He is a certified real estate appraiser. On or about September 15, 1996, Sweredoski went to Petitioner's Building and measured the dimensions of the building (and certain of its component parts), using an electronic measuring device, to ascertain whether the building had the "net square footage required" by the RFP. Employing the "Standard Method of Space Measurement," Sweredoski reasonably determined that Petitioner's Building had less than the "net square footage required" by the RFP and that therefore Petitioner's proposal was not responsive to the RFP. The other proposal that the Department received was also deemed to be non-responsive (a determination that has not been challenged). The Department's Notice of Rejection of Proposals Having determined that both proposals it had received were materially non-responsive, the Department, by letter dated September 19, 1996, informed Petitioner of the following: This letter is to inform you that the Department of Corrections has determined that it is in the best interest of the State of Florida to reject all bids submitted for the above referenced lease [Lease No. 700:0754]. A new Request for Proposal will be issued soon. This letter constitutes agency action concerning the referenced bid. You have seventy-two (72) hours from receipt of this letter to file a written notice of protest to this action, and ten (10) days after filing such written notice of protest to file a formal written protest. All documents should be addressed to the undersigned at 3810 Inverrary Boulevard, Building C, Suite 101, Lauderhill, Florida 33319. Failure to file a protest within the times prescribed in Section 120.53(5), Florida Statutes, shall constitute a waiver of proceedings under Chapter 120, Florida Statutes. Petitioner's Protest Petitioner timely protested the Department's decision to reject Petitioner's proposal and to issue a new RFP. Sweredoski's Return to Petitioner's Building On or about October 1, 1996, Sweredoski returned to Petitioner's Building to verify the accuracy of the measurements that he had obtained (using an electronic device) during his earlier visit to the building. On this follow-up visit to the building, Sweredoski used a mechanical device (more specifically, a tape measure) to measure the dimensions of the building (and certain of its component parts). The measurements he obtained during this second visit were "very close" to the measurements he had obtained during his previous visit. Sweredoski, employing (as he had during his earlier visit) the "Standard Method of Space Measurement," reasonably determined that Petitioner's Building had a "net square footage" of 8,731 net square feet (a "gross square footage" of 9,369 square feet minus: 271 square feet for the existing stairway leading from the first to the second floor; 110 square feet for the existing telephone/mechanical closet on the second floor; and 257 square feet for the existing bathrooms on the first and second floors). Referral of Petitioner's Protest to the Division On October 10, 1996, the Department referred Petitioner's protest to the Division.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Corrections enter a final order denying Petitioner's protest of the Department's decision to reject all proposals (including Petitioner's) submitted in response to the Department's request for proposals for Lease No. 700:0754. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 21st day of November, 1996. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 21st day of November, 1996.
The Issue The issue is whether Respondent discriminated against Petitioner on the basis of her race, subjected Petitioner to a hostile work environment, or retaliated against Petitioner in violation of the Hillsborough County Human Rights Ordinance 00-37, Section 4(1)(a)(1).
Findings Of Fact Petitioner is an aggrieved person within the meaning of Hillsborough County Human Rights Ordinance 00-37, Section 16. Petitioner is an African-American female and filed a complaint with the Board alleging that Respondent engaged in race, color, and gender discrimination; retaliation; and the creation of a hostile work environment. Respondent is an employer within the meaning of Section 16. Respondent operates a car dealership and is in the business of selling and servicing new and used automobiles and trucks in several states, including Florida. Respondent was not Petitioner's employer. Petitioner was a temporary worker during the relevant period, and her employment contract was with an employment agency. No written employment contract existed between the parties to this proceeding. The employment agency paid Petitioner, and Respondent paid the employment agency. The employment agency assigned Petitioner to Respondent from January 13 through January 23, 2004. Other than Petitioner’s uncorroborated testimony, there is no written or other evidence that Respondent intended Petitioner’s temporary assignment either to become a permanent position or to last for six weeks. The fact-finder finds the testimony of Petitioner to be less than credible and persuasive. From January 13 until January 21, 2004, Petitioner worked at Respondent's Tampa office at Lexus of Tampa Bay located on North Dale Mabry Avenue, Tampa, Florida. Respondent transferred Petitioner to its office at Lexus of Clearwater, Florida, on January 21, 2004, and terminated the assignment from the employment agency on January 23, 2004. The termination of assignment occurred in Pinellas County, rather than Hillsborough County, Florida. Petitioner began her assignment at Lexus of Tampa Bay on January 13, 2004, as a receptionist. Respondent paired Petitioner with Ms. Mary Ann Browne, a full-time receptionist and Caucasian female. Respondent charged Ms. Browne with training Petitioner in the responsibilities of a receptionist. Petitioner alleges that Ms. Browne engaged in unprofessional conduct during the 10 days she trained Petitioner. The unprofessional conduct, according to Petitioner's testimony included "racial undertones." For example, Ms. Browne asked Petitioner why, "Black people are all family, cousins, sisters, brothers." Petitioner responded, "Don't ask me. I wouldn't be that black." Ms. Browne allegedly stated aloud that two female employees who hugged in greeting each other were lesbians. Ms. Browne allegedly called another African-American employee a "pimp" and referred to an Hispanic employee as a "macdaddy." The fact-finder does not know the meaning of the term "macdaddy," or even how to spell the term, and the record does not provide an adequate definition or spelling. Ms. Browne allegedly referred to homosexual customers as "flamers." Finally, Ms. Browne allegedly engaged in threatening physical behavior by tossing items at Petitioner across the reception desk. No one but Petitioner heard the alleged racial and sexist comments by Ms. Browne or witnessed the physically aggressive behavior. The preponderance of evidence does not establish a prima facie showing of discrimination or retaliation. Nor does the preponderance of evidence show that Respondent subjected Petitioner to a hostile work environment. Finally, a preponderance of the evidence does not show that Respondent engaged in a discriminatory practice. The evidence of Ms. Browne's conduct consists of Petitioner's testimony and a diary that Petitioner created contemporaneously with the acts Petitioner attributes to Ms. Browne. No other employees at Lexus of Tampa Bay witnessed the events evidenced in Petitioner's testimony and diary. Ms. Browne left her employment with Respondent in the fall of 2004 and did not testify. Ms. Toni Davis, now Ms. Toni Scotland, was a receptionist during part of the relevant time but was not present during the entire time because she was being promoted to a position in accounting. Ms. Scotland did not recall any improper behavior by Ms. Browne in 2004. The Investigative Report based its recommendation of a finding of cause on statements attributed in the Report to then Ms. Davis and the documentation of the disciplinary action taken by Respondent against Ms. Browne. However, Ms. Scotland testified that she did not recall being contacted by an investigator for the Board and denied making any statements to the investigator. The investigation took approximately 3.5 years to complete because the investigator is the only investigator for the Board and because the investigator suffered a heart attack during the investigation. At the hearing, the testimony of the investigator concerning statements he attributed to Ms. Scotland, also Ms. Davis, was vague and sparse and is less than credible and persuasive. A preponderance of the evidence does not show that Respondent is responsible for the acts Petitioner attributes to Ms. Browne. Petitioner complained to her employment agency about the conduct of Ms. Browne. The employment agency notified Respondent, and Ms. Helene Ott, the supervisor at the time, interviewed both Petitioner and Ms. Browne on January 19, 2004. The only complaint made by Petitioner to Ms. Ott on January 19, 2004, was that Ms. Browne went to the break room to bring back a drink in separate disposable drink cups for Ms. Browne and Petitioner. Upon returning with the drinks, Ms. Browne told Petitioner that Ms. Browne had spit in Petitioner's cup. Petitioner did not tell Ms. Ott that Petitioner witnessed Ms. Browne spit in the cup. Petitioner's version of events changed at the hearing. Petitioner testified that she saw Ms. Browne spit in Petitioner's cup. Petitioner testified that Ms. Browne offered to refill the cup Petitioner already had on the receptionist desk, grabbed the cup, stood, drew up a large volume of spit from deep in Ms. Browne's throat, and let the long volume of liquid drop into Petitioner's cup in full view of Petitioner. Petitioner further testified in tears that she stated repeatedly to Ms. Browne, "Give me back my cup!" The foregoing testimony of Petitioner is less than credible and persuasive. The fact-finder is not persuaded that any reasonable person would have wanted Ms. Browne to return the cup. The cup was a disposable cup from the vending area which was of no value to Petitioner. Petitioner did not relate this version of the events to Ms. Ott when Ms. Ott investigated Petitioner's complaints on January 19, 2004. The version of events that Petitioner related to Ms. Ott on January 19, 2004, is consistent with the contemporaneous account by Mr. Browne. When Ms. Ott interviewed Ms. Browne on January 19, 2004, Ms. Browne admitted that she told Petitioner she had spit in Petitioner's cup when Ms. Browne returned from the vending area to the reception desk with Petitioner's drink. Ms. Browne also admitted to engaging in offensive language, offensive commentary about customers, and unprofessional conduct. A preponderance of evidence does not show that Respondent created or fostered a work environment that was hostile toward Petitioner. On January 19, 2004, Ms. Ott issued a written counseling/final warning to Ms. Browne for her use of “offensive language, offensive commentary about customers, and unprofessional conduct.” The disciplinary action advised Ms. Browne that any further misconduct would result in the termination of her employment. On January 20, 2004, Ms. Ott interviewed Petitioner again concerning additional complaints from the employment agency. Petitioner told Ms. Ott that Ms. Browne used vulgar and unprofessional language, but Petitioner did not state to Ms. Ott that Ms. Browne made racial or sexist comments. On January 21, 2004, Ms. Ott needed to fill another temporary vacancy at Lexus of Clearwater. Ms. Ott asked Petitioner to go to Clearwater, and Petitioner went to the Clearwater office voluntarily. Respondent ended the employment agency assignment on January 23, 2004. Ms. Ott described Petitioner’s performance as “very good." On January 23, 2004, Ms. Ott offered to write a letter of reference for Petitioner. Ms. Ott told Petitioner that Ms. Ott would consider Petitioner for a position at Lexus of Tampa Bay or Lexus of Clearwater if the need arose.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the final order issued in this proceeding should find that Respondent is not guilty of the allegations made by Petitioner. DONE AND ENTERED this 7th day of August, 2008, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of August, 2008. COPIES FURNISHED: Leslie P. Stokes 4714 Pleasant Avenue Palm Harbor, Florida 34683 Gail P. Williams Hillsborough County Post Office Box 1110 Tampa, Florida 33601-1110 Andrew Froman, Esquire Alva L. Cross, Esquire Fisher & Phillips LLP 401 East Jackson Street, Suite 2525 Tampa, Florida 33602
Findings Of Fact The Palm Beach County School Board (Respondent) issued an invitation to bid (ITB) on February 16, 1993, requesting bids for the removal, preparation, and installation of carpet-glue down on project SB93C-216T. The ITB provided that all bids were to be submitted by March 31, 1993, at 2:00 p.m., at which time all bids were to be publicly opened. Pertinent sections of the ITB to the case at hand include a section entitled "Invitation To Bid" which provides in pertinent part: AWARDS: In the best interest of the School Board, the Board reserves the right to reject any and all bids and to waive any irregularity in bids received; to accept any item or group of items unless qualified by bidder; to acquire additional quantities at prices quoted on this invitation unless additional quantities are not acceptable, in which case the bid sheets must be noted "BID IS FOR SPECIFIED QUANTITY ONLY." All awards made as a result of this bid shall conform to applicable Florida Statutes. Another section entitled "General Conditions, Instructions and Information for Bidders" provides in pertinent part: 26. Any and all Special Conditions that may vary from these General Conditions shall have precedence. The section entitled "Special Conditions" provides in pertinent part: C. AWARD: Bid will be awarded to the lowest and best bidder meeting specifications, terms and conditions . . . The School Board shall elect to award to a primary and a secondary vendor . . . . * * * N. CONTRACTOR QUALIFICATIONS: The contractor must have at least three years of verifiable experience in the floor covering contracting business. The contractor must have in force the required occupational licenses from Palm Beach County and it's municipalities. All documentation of the above requirements must be submitted with the proposed bid by each bidding contractor. The contractor shall not sub-contract any portion of their work, outlined in this contract, to any person(s) or company, without advance written permission from the Carpentry Supervisor of the Department of Maintenance & Plant Operations. Another section of the ITB entitled "Additional Information" provides in pertinent part: Additional information will not be a determining part of the award of this bid except in the instance where the per square yard prices are too close to determine a clear awardee. In that instance we will look at the optional items in this section as the determining factor. (This usage is also based upon all other factors being equal.) . . . Cost of heavy patching. $ per sq. ft. . . . Cost of heavy patching. $ per sq. ft. . . . By March 31, 1993, eight bids were received. However, only seven bids were considered. Respondent's Department of Contracting & Procurement reviewed the bids. On April 12, 1993, the Department of Contracting & Procurement (Department) posted the bid tabulations, which showed, inter alia, that the apparent lowest bidder was Carpetech at $28,029.61, that the apparent second lowest bidder was Buy the Square Yard (Petitioner) at $32,107.32, and that the apparent highest bidder was Acousti Engineering of Florida (Intervenor). Additionally, the recommendation was that the bid be awarded to the "lowest and best bidder meeting specifications, terms, and conditions" with Carpetech being the "Primary" bidder and Petitioner being the "Secondary" bidder. Moreover, the bid tabulation sheet noted that the "price" of each bid was determined by using a "hypothetical" that was typical of a School Board project. This was the first time that the bidders were aware of a hypothetical being used. Respondent had not used a hypothetical in past bids for this type of work, and it was not included in the bid specifications At first, after the bids were opened, Respondent's Department used the base bid, which excluded any alternate work, to determine the apparent lowest bidder. The calculation showed Intervenor as the apparent lowest bidder at $11.03 sq. yd. and Petitioner as the apparent second lowest bidder at $11.08 sq. yd. Carpetech's base bid was $11.295 sq. yd. A discussion ensued as to whether the bids were "too close"; but, there was no consensus as to the meaning of "too close." However, the Department determined that, taking into consideration the alternate work which would have to be done, Intervenor was not the best bidder. The Department first considered recommending the rejection of all bids and readvertising, but decided upon using a hypothetical which included the base bid and the alternates in the calculations. As a result of using the hypothetical, Carpetech, not Intervenor, was the apparent lowest bidder. However, Carpetech, unlike any other bidder, changed one of the specifications in its bid from the "cost of heavy patching" to the "cost of light patching." Respondent admits that a clerical error had occurred and that particular specification should have been "light" patching, instead of "heavy" patching. Also, Carpetech failed to submit an occupational license with its bid. However, subsequent to the bid opening, Carpetech submitted an occupational license. Like Carpetech, Intervenor also failed to submit an occupational license with its bid. 2/ To the contrary, Petitioner submitted an occupational license with its bid. The occupational license forbade Petitioner to have employees at its location but allowed it to hire outside employees, which meant that it could hire contract labor to perform under the contract of the bid. 3/ Out of the three bidders--Carpetech, Petitioner and Intervenor--only Petitioner is a minority owned business. Initially, when Petitioner began its business in December 1991, it was owned by a minority female and a minority male. Subsequently, for financial purposes, the minority female became the sole shareholder/owner and the minority male became the business consultant (consultant), receiving consulting fees. On or about March 24, 1992, Petitioner was certified as a Minority Business Enterprise (MBE) by Palm Beach County, and on or about March 19, 1992, it was certified as a MBE by Respondent, with the certification effective from May 1992 to May 1993. Petitioner became incorporated in or around April 1992 and again in July 1992 when the minority female became the sole owner. Prior to Petitioner's formation, its consultant had his own flooring business (carpet and tile sales and insulation) for several years. The prior business had financial difficulties which resulted in court judgements against it. Petitioner's sole owner was never involved in the consultant's prior business. She provides Petitioner's financial security, and there have been no court judgments against Petitioner. Respondent's Department was familiar with flooring work of Petitioner's consultant before he became associated with Petitioner. He had performed flooring work for Respondent in the past, which was very satisfied with his work. The Department was not aware of the court judgements against the prior business of Petitioner's consultant. However, even if it was, the judgments would not have had a negative effect on Petitioner in the award process of the current contract. On or about April 14, 1993, Intervenor filed its written protest, which was timely. On or about April 22, 1993, Petitioner filed its written protest, which was timely. On April 28, 1993, Respondent held an informal meeting on the written protests. On May 3, 1993, Respondent's counsel issued its recommendation on the protests, which was to "reject all bids and rebid with new terms and conditions and specifications" in order for all bidders to be given "a fair playing field."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Palm Beach County School Board enter its final order rejecting all bids on project SB93C-216T and readvertise. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 2nd day of December 1993. ERROL H. POWELL 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 2nd day of December 1993.
The Issue Whether Respondent unlawfully discriminated against Petitioner.
Findings Of Fact For many years Mark Dunning Industries, Inc. (MDI), held the contract for trash removal and processing for Naval Air Station, Pensacola, Florida (NAS Pensacola). In the summer of 1995, the contract for these services, for a period beginning January 1996, were the subject of a bid solicitation. The apparent winner of the bid was Ohio Disposal Systems, Inc (ODSI). This bid was contested by MDI. Ultimately, ODSI prevailed in the bid contest and was selected to perform the contract. Performance was to begin on January 1, 1996, however, ODSI was not informed that it was to be the contractor until early December 1995. Petitioner was born on July 12, 1922. He is a U.S. citizen from Puerto Rico, and of Hispanic origin. Petitioner first came to be employed by MDI in the summer of 1994. Petitioner worked on the "hill," which is an elevated portion of the trash dump on board NAS Pensacola. It was his job to weld broken equipment. He also operated two kinds of equipment: a Bobcat, which is a small front-end loader, and a backhoe with a dozer blade mounted on the front. Petitioner was paid about $16.00 per hour as a welder. Victor Cantrel, Petitioner's friend, commenced employment with MDI in July 1995. He worked on the "hill" and also drove the Bobcat and the back-hoe. He would utilize this equipment to push trash into a compactor. In trash-handling parlance, he was known as a "hill man." He was not a welder. He worked closely with Petitioner. Mr. Cantrel was born on June 25, 1972, and is Anglo- American. He was paid about $9.00 per hour. The supervisor of Petitioner and Mr. Cantrel, during the latter months of 1995 while they were working for MDI, was Thomas Lucky. The principal of ODSI was Vince Crawford. On or about December 28, 1995, at the end of the workday, Mr. Lucky informed the employees, including Petitioner, Mr. Cantrel, and a number of trash truck drivers, that there was to be a meeting in the company office near the "hill." Present at the meeting in the office, which commenced around 6:30 p.m., was Petitioner, Mr. Cantrel, Mr. Lucky, several truck drivers, Mr. Crawford, and his wife Cathy. Mr. Crawford informed the assembled employees that he was bringing in all new equipment; that because there would be new equipment, the new employees of ODSI would be able to work 40 hours per week; and that due to the requirement to get his company in shape in time to meet the January 1, 1996, deadline, many of the employees of MDI would be offered jobs with ODSI. After revealing these preliminary matters, Mr. Crawford asked a man named Lee what he did at MDI; this man said that he was a truck driver. Mr. Crawford told him that he was hired with the new company. Then he asked Mr. Cantrel what he did; he said he drove the Bobcat. Mr. Crawford said, "Recycle, huh. You are hired." Mr. Cantrel subsequently filed an employment application. However, he knew that after the announcement at the meeting, he was going to work for ODSI. When Mr. Crawford inquired of two more people, they both responded, "truck driver," and Mr. Crawford informed them that they were hired. When he asked Petitioner, Petitioner said, "Welder." Mr. Crawford then said, "We don't need no welders here." This was the first and last encounter Petitioner had with Mr. Crawford. The next day Petitioner arrived at work at the usual time and was informed that he no longer was employed at that facility. On January 2, 1996, Petitioner presented an employment application to the office at ODSI seeking employment as a "Welder and/or Heavy Equip. Opr." He never received a response. No evidence was adduced that at that time there were job openings for a "welder and/or heavy equipment operator." Additionally, according to Petitioner, no one from ODSI informed Petitioner that he was not qualified. No evidence was adduced at the hearing which indicated that Mr. Crawford noticed that Petitioner was 73 years of age, or that he was a Puerto Rican, or that he was of Hispanic origin. The unrebutted evidence demonstrated that Petitioner was not hired, at the time jobs were available, because Mr. Crawford was bringing in new equipment. New equipment does not require frequent welding and, therefore, Mr. Crawford did not need a welder.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a final order be entered finding Respondent committed no unlawful employment practice. DONE AND ENTERED this 28th day of March, 2002, in Tallahassee, Leon County, Florida. HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of March, 2002. COPIES FURNISHED: Bruce Committe, Esquire 17 South Palafox Place, Suite 322 Pensacola, Florida 32501 Denise Crawford, Agency Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 H. William Wasden, Esquire Pierce, Ledyard, Latta, Wasden & Bowron, P.C. Post Office Box 16046 Mobile, Alabama 36616 Cecil Howard, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
Findings Of Fact On December 5, 1984, the Department of Transportation (DOT) opened bids on State Project No. 89095-3414 and 89095-3419 in Martin County, Florida, for construction of a portion to the uncompleted I-95. Respondent was apparent low bidder but this bid was declared nonresponsive for failure to meet Disadvantaged Business Enterprise (DBE) requirements. On December 7, 1984, Good Faith Efforts Review Committee reviewed the bids and found Jasper Construction Company had achieved only 8.43 percent of the 10 percent DBE goal requirements of the contract and that all other bidders had reached or exceeded this requirement. This committee did not find Petitioner had made a good faith effort to meet the DBE goals. On December 12, 1984, the Federal Department of Transportation approved the award of the bid to Wiley N. Jackson Company, the second lowest bidder. Petitioner was notified of DOT's intent to reject its bid and by letter dated December 13, 1984, petitioner protested DOT's rejection of its bid for failure to comply with the 10 percent DBE requirement and of the proposed award of the bid to the second lowest bidder. That letter requested an opportunity to "meet with you" to show Petitioner had made a good faith effort to meet the DBE requirements. On December 14, 1984, representatives of Petitioner and Respondent met to consider Petitioner's good faith efforts to comply with the DBE requirements. The results of that meeting were not submitted in these proceedings but on December 17, 1984, Respondent gave notice of its intent to award the contract to Wiley N. Jackson Company by posting with the clerk of Agency Proceedings. By letter dated December 26, 1934, hand delivered by Petitioner to Respondent, Petitioner referred to two phases of the project on which it had bid, advised that Jasper would like to have both contracts awarded it but if the Department was not going to award the Palm Beach County project to Jasper it did not want to enter into the Palm Beach/Martin County project. Petitioner further stated it was interested in an all-or-nothing deal and would like to meet with DOT at the earliest convenient moment. Funds for this project are Discretionary Interstate Lapse Funds provided by the Federal Government. Construction on this project must commence not later than February 4, 1985, or the funds will revert to the U.S. Treasury. On January 4, 1985, DOT entered an Order finding that it was necessary to proceed with award of the contract without delay in order to avoid an immediate and serious danger to the public health, safety, and welfare, cited many of the above-noted facts, and advised the parties of their right to seek injunctive or appellate relief pursuant to Section 120.59(3), Florida Statutes. On January 5, 1985, Petitioner filed the REQUEST FOR IMMEDIATE HEARING which is the subject of this proceeding. This request was forwarded to the Division of Administrative Hearings by DOT on January 8, 1985, and immediately assigned to this Hearing Officer. On January 10, 1985, attempts to contact the attorneys for the parties revealed the attorneys were in circuit court on Petitioner's request for a temporary injunction to stop the bid procedure until Petitioner had an opportunity to litigate the good faith efforts by Jasper to comply with the DBE requirements. The circuit court denied Petitioner's request for a temporary injunction and scheduled a final hearing on the permanent injunction for January 22, 1985.
The Issue The issue in this case is whether Petitioner timely filed a complaint of discrimination in accordance with the provisions of Chapter 760, Florida Statutes (2010).
Findings Of Fact At the hearing, the parties stipulated to the facts numbered 1-4, as follows: Petitioner was terminated from his employment with Respondent on March 13, 2009. Petitioner's deadline for filing his complaint with the Florida Commission on Human Relations (FCHR) was March 14, 2010. Petitioner emailed a Technical Assistance Questionnaire to the FCHR on February 18, 2010. Petitioner signed an Employment Complaint of Discrimination and dated it March 24, 2010. In addition to the stipulated facts, the undersigned noted that the Complaint is stamped received by the FCHR at 10:48 a.m. on March 25, 2010.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order dismissing the Petitioner's claim of discrimination. DONE AND ENTERED this 10th day of December, 2010, in Tallahassee, Leon County, Florida. S ELEANOR M. HUNTER 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 10th day of December, 2010. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Lacey Hofmeyer, Esquire Danielle Garno, Esquire Greenberg Traurig 1221 Brickell Avenue Miami, Florida 33131 James Jean-Francois, Esquire Law Offices of James Jean-Francois, PA 6100 Hollywood Boulevard, Suite 211 Hollywood, Florida 33024
The Issue The issue is whether the Department of Health’s proposed award of Invitation to Bid No. DOH 04-191 to Lachat Instruments- Hach Co. is contrary to the Department’s governing statutes, rules, policies, or the specifications in the Invitation to Bid for the reasons alleged by Petitioner.
Findings Of Fact The Department issued ITB No. DOH 04-191 to solicit bids for the purchase of a Discrete Analyzer System (DAS) and a three-year service/maintenance agreement for the DAS. The DAS is a piece of laboratory equipment that is used primarily to analyze the chemical composition and level of nutrients in wastewater. Bids were submitted in response to the ITB by Systea, Lachat, and OI. The bids were opened and reviewed by the Department’s staff. The Department’s purchasing office reviewed the pricing information in the bids, and its laboratory staff reviewed the technical components of the bids. Lachat was determined, based upon that review, to be the low bidder and, therefore, the Department posted notice of its intent to award the contract to Lachat. Systea filed with the Department a notice of protest and a formal written protest challenging the award of the contract to Lachat. The sole basis of Systea’s protest is that the “grand total” line in Lachat’s bid was left blank and that the omission is not a minor irregularity that can be waived by the Department.2 The protest seeks to have Lachat’s bid “disqualified” based upon that omission. Special Condition 5.1 of the ITB required bidders to “submit all mandatory, technical, and pricing data in the formats specified in the Invitation to Bid.” Special Condition 6.16 stated that “[b]ids that do not meet the requirements specified in this Invitation to Bid will be considered non-responsive.” Similarly, paragraph 14 of the General Instructions to Bidders states that the “[f]ailure to comply with terms and conditions, including those specifying information that must be submitted with a response, shall be grounds for rejecting a response.” The pricing data referenced in Special Condition 5.1 was to be provided by the bidders on the Price Page, which is Attachment II of the ITB. The Price Page has space for the bidders to enter their “unit price” and the “total amount” for the DAS as well as space for the bidders to enter their annual price for the three- year service/maintenance agreement required by the ITB. The Price Page also has space for the bidders to enter their “grand total,” and it is undisputed that the “grand total” was to reflect the sum of the individual prices referenced in the preceding paragraph. Inclusion of the “grand total” on the Price Page is a mandatory requirement of the ITB because Special Condition 5.5 states that the Price Page “must be filled out as indicated” (emphasis supplied),3 and Special Condition 6.15 states that the contract is to be awarded to the bidder offering “the lowest grand total for the items being solicited.” Thus, the omission of the “grand total” on the Price Page of a bid renders the bid non-responsive unless the omission is waived by the Department. Special Condition 6.10 prohibits the Department from waiving “material deviations” in the bids that relate to the mandatory requirements of the ITB. That condition does not similarly prohibit the Department from waiving non-material deviations. Other provisions of the ITB expressly authorize the Department to waive non-material deviations. For example, Special Condition 6.16 reserves the Department’s right to waive “any minor irregularity or technicality in bids received,” and paragraph 15 of the General Instructions to Bidders reserves the Department’s right to waive “any minor irregularity, technicality, or omission.” (All emphases supplied). The Price Page in Lachat’s bid listed prices for the DAS and for each year of the required service/maintenance agreement, but the “grand total” line on the Price Page was left blank. Thus, Lachat’s bid was technically non-responsive. In addition to the Price Page, Lachat’s bid included a document titled “Proforma [sic] Price Quotation.” The Department staff did not consider the “Proforma” document in determining the responsiveness of Lachat’s bid or in tabulating the bid’s “grand total.” The document was ignored by Department staff because it was not something that was specifically required by the ITB. The prices listed on the “Proforma” document correspond to the prices itemized on the Price Page in Lachat’s bid. The document also makes reference to the one-year parts and labor warranty that is included in the price of the DAS (and required by Special Condition 4.6) as well as the components included in the annual price that Lachat bid on the Price Page for the service/maintenance agreement, which is referred to in the “Proforma” as a “field service partnership”. The components of the “field service partnership” listed in the “Proforma” -- i.e., “onsite, priority service, two preventative maintenance visits, and parts and labor” -- are materially the same as the required components of the service/maintenance agreement referenced in Special Condition 4.7. As part of its review of the bids, the Department staff tabulated a “grand total” for Lachat’s bid by adding the unit prices itemized on the Price Page of Lachat’s bid. The result of that tabulation was $46,548, which was lower than the “grand total” in the bids submitted by Systea and OI. The Department staff would have performed this calculation even if Lachat had filled-in an amount on the “grand total” line in order to verify the underlying calculations. Indeed, the Department staff also verified the calculations in Systea’s and OI’s bids, which each included an amount on the “grand total” line. Department staff confirmed the $46,548 figure with a representative of Lachat, as it is authorized to do under paragraph 14 of the General Instructions to Bidders. That paragraph provides that “[b]efore award, the [Department] reserves the right to seek clarifications . . . deemed necessary for proper evaluation of the submissions.” The amount entered on the “grand total” line on the Price Page of Systea’s bid is $49,995. That figure equals the sum of the unit prices itemized on the Price Page of Systea’s bid. The amount entered on the “grand total” line on the Price Page of IO’s bid is $52,427.50. That figure is inexplicably higher than the sum of the unit prices itemized on the Price Page of IO’s bid. The sum of the itemized prices is $49,747.50. The Department staff did not contact OI to seek clarification regarding this discrepancy because OI would not have been the lowest bidder even if the unit prices in its bid were correct. In posting the contract award, the Department listed OI as the third-lowest bidder based upon the “grand total” in its bid, rather than the second-lowest bidder based upon the Department’s tabulation of the itemized costs in the bid. The omission of the “grand total” on the Price Page of Lachat’s bid is a minor irregularity because the bid contained (on the Price Page) all of the figures necessary to calculate the “grand total,” and the tabulation of the “grand total” was a simple mathematical calculation that the Department would have made in any event to verify the accuracy of the "grand total" based upon the unit prices itemized on the Price Page. If Lachat’s bid was rejected based upon the omission of the “grand total” on the Price Page, there would be a negative fiscal impact on the Department of more than $3,000 because the bids of Systea and OI (as tabulated by the Department) were that much higher than Lachat’s bid. The legislative appropriation for the Department’s purchase of the DAS expires on June 30, 2005, and the Department will lose the appropriated funds unless it expends or encumbers the funds by 5:00 p.m. on that date. A purchase order must be issued to encumber the funds, and the purchase order must identify the entity that the funds will be paid to.
The Issue Whether Respondent should sustain Petitioners' challenge to the preliminary determination to reject their bid as not responsive to Respondent's Invitation to Bid for Lease No. 590: 2286? 1/
Findings Of Fact Based on the record evidence, the following Findings of Fact are made: Earlier this year, Respondent issued an Invitation to Bid for Lease No. 590: 2286 (hereinafter referred to as the "ITB"). The first page of the ITB contained the Bid Advertisement, which read as follows: The State of Florida, Department of Health and Rehabilitative Services is seeking an existing facility in Dade County to lease for use as office space containing approximately 30,086 net rentable square feet. The space proposed must be an office environment. Converted factories/warehouses in industrial areas are not acceptable. The facility shall be located within the following boundaries: North By S.W. 8th Street, South By S.W. 88th Street, East By S.W. 37th Avenue, Southeast By South Dixie Highway, and West By S.W. 87th Avenue. Any facility located on a parcel of land which abuts any of the street boundaries is consider[ed] within the boundaries. Occupancy date of 8/01/91. Desire a Ten (10) year lease with three (3)- two (2) year renewal options. Information and specifications may be obtained from Mr. Philip A. Davis, Facilities Services Manager, 401 N.W. 2nd Avenue, Suite S721, Miami, Florida 3312, (305) 377-5710. Please reference lease number 590: 2286. Program requirements will be discussed at a pre-proposal conference to be held at 10:00 a.m. on 4/22/91 at 401 N.W. 2nd Avenue, Suite S721 Miami, Florida 33128. Bid opening date will be on 5/30/91 at 10:00 a.m. at the above mentioned address. Minority business enterprises are encouraged to attend the pre-proposal conference and participate in the bid process. The Florida Department of Health and Rehabilitative Services reserves the right to reject any and all bids and award to the bid judged to be in the best interest of the state. The second page of the ITB contained the definitions of various terms used in the ITB. Among the terms defined were "dry and measurable" and "existing building." "Dry and measurable" was defined as follows: These are essential characteristics to describe "existing" proposed space. To be considered as "dry and measurable" the proposed space must be enclosed with finished roof and exterior walls in place. Interior floors need not be completed. Exterior windows and doors need not be installed. The proposed area is not required to be completed. These characteristics conform to standard lessor construction practices. This definition is identical to the definition of this term found on page 1-5 of Respondent's leasing manual, HRSM 70-1. "Existing building" was defined as follows: To be considered as existing the entire space being bid must be dry and capable of being physically measured to determine net rentable square footage. at the time of bid submittal. On the ninth page of the ITB, the following advisements, among others, were given: The department reserves the right to reject any and all bids when such rejection is in the interest of the State of Florida. Such rejec- tion shall not be arbitrary, but be based on strong justification which shall be communi- cated to each rejected bidder by certified mail. * * * The department reserves the right to waive any minor informalities or technicality and seek clarification of bids received when such is in the best interest of the state, but not limited to the correction of simple mistakes or typo- graphical errors. Such corrections will be initiated [sic] and dated on the original bid submittal by the bidder. Attached to the ITB and incorporated therein was a document entitled "Standard Method of Space Measurement." It read as follows: The purpose of this standard is to permit communication and computation on a clear and understandable basis. Another important purpose is to allow comparison of values on the basis of a generally agreed upon unit of measurement (net square footage). It should also be noted that this standard can and should be used in measuring office space in old as well as new buildings, leased office space as well as State-owned office space. It is applicable to any architectural design or type of construction because it is based on the premise that the area being measured is that which the agency may occupy and use for its furnishings and its people. This standard method of measuring office space measures only occupiable space, undistorted by variances in design from one building to another. It measures the area of office building that actually has usable (rental) value and, therefore, as a standard can be used by all parties with confidence and a clear understanding of what is being measured. Area Measurement in office buildings is based in all cases upon the typical floor plans, and barring structural changes which affect materially the typical floor, such measurements stand for the life of the building, regardless of readjustments incident to agency layouts. All usable (rentable) office space, private sector leased, State-owned, or other publicly owned shall be computed by: Measuring to the inside finish of permanent outer building walls to the office side of corridors and/or other permanent partitions, and to the center of partitions that separate the premises from adjoining usable areas. This usable (rentable) area shall EXCLUDE: bathrooms, public corridors, stairs, elevator shafts, flues, pipe shafts, vertical ducts, air-conditioning rooms, fan rooms, janitor closets, electrical closets, telephone equipment rooms, - - and such other rooms not actually available to the tenant for his furnishings and personnel - - and their enclosing walls. No deductions shall be made for columns and projections structurally necessary to the building. The attached typical floor plan illustrates the application of this standard. 3/ Petitioners submitted a bid in response to the ITB. 4/ In their bid they proposed to lease to Respondent space on the first and second floors of a building located at 8500 S.W. 8th Street in Miami, Florida. The space offered by Petitioners is currently occupied. At the time of bid submittal, all of the proposed space on the second floor was "dry and measurable," as that term is defined in the ITB. It encompassed a total of 26,540 square feet. At the time of bid submittal, only a portion of the proposed space on the first floor, amounting to 4,400 square feet, was "dry and measurable," as that term is defined in the ITB, inasmuch as the proposed space on this floor included a breezeway area that did not have either a front or back exterior wall in place. 5/ Subsequent to the submission and opening of bids, Petitioners enclosed this breezeway area by erecting exterior walls. Accordingly, the entire space offered by Petitioners was not "dry and measurable" at the time of bid submittal as required by the ITB. Bids were opened by Respondent on May 30, 1991. By letter dated June 18, 1991, Respondent notified Petitioners that their bid had been deemed non-responsive. The letter read as follows: The bid you submitted for lease No. 590: 2286 has been determined to be non-responsive because the proposed space is not dry and measurable. The breezeway area proposed on the ground level of your premises at 8500 S.W. 8 Street, Miami, does not have exterior walls in place. The invitation to bid on lease No. 590: 2286 provides on page 2: "Dry and Measurable- These are essential characteristics to describe "existing" proposed space. To be considered as "dry and measur- able," the proposed space must be enclosed with finished roof and exterior walls in place. You have the right to file a protest. The protest must be filed in accordance with S.120.53(5), Florida Statutes and Chapter 10-13.11 Florida Administrative Code. Failure to file a protest within the time prescribed in S.120.53(5), Florida Statutes, shall constitute a waiver of proceedings under chapter 120, Florida Statutes. To comply with the referenced statute, a written notice of intent to protest must be filed with the contact person listed on the Invitation to Bid for lease No. 590: 2286 within 72 hours after receipt of this notice. Within ten calendar days after the notice of protest is filed, a formal written protest and protest bond must be filed with the contact person. The bond must be payable to the department in an amount equal to one percent of the total lease payments over the term of the lease or $5,000, whichever is less. This determination was the product of, not any unlawful bias or prejudice against Petitioners, but rather the honest exercise of the agency's discretion. Petitioners subsequently filed a protest of this preliminary determination to find their bid non-responsive. It is this preliminary determination that is the subject of the instant bid protest proceeding.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the Department of Health and Rehabilitative Services enter a final order rejecting Petitioners' bid for Lease No. 590: 2286 on the ground that said bid is non-responsive. RECOMMENDED in Tallahassee, Leon County, Florida, this 25th day of September, 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 25th day of September, 1991.
The Issue Whether the Department of Transportation’s decision to reject all bids for Financial Project No. 209278-1-52-01 (J. Turner Butler Blvd.) a major interchange in Duval County, Florida, was exercised illegally, arbitrarily, dishonestly or fraudulently.
Findings Of Fact On April 1, 2004, the Department of Transportation advertised its Bid Solicitation Notice (BSN), for the JTB Project. H. W. Lochner, Inc. (Lochner) designed the JTB Project. Petitioner, Superior Construction, and Archer Western Contractors, LTD, submitted bids on May 26, 2004. Petitioner had the apparent low bid, and Superior had the second apparent low bid. On or about May 27, 2004, Robert Burleson, President of the Florida Transportation Builders Association (“FTBA”), contacted the State Construction Engineer, Ananth Prasad, P.E., and alerted him to potential issues regarding MOT phasing. (T. p. 876, lines 18-24; p. 880, lines 14, 15). Richard Ayers, of Superior Construction, called the Jacksonville Urban Office of the Department of Transportation, District 2, alerting the District to the concerns regarding the maintenance of traffic issues. Ayers had reviewed the bid and plans generally to assess its bid in light of the Petitioner's bid, and had discovered in the process MOT issues that he believed would add substantially to the costs and time required to construct the project. As a result of these calls, Robert Hansgen, P.E., District 2 Resident Engineer, was directed by someone within the Department to review the MOT plans. On June 1, 2004, Mr. Hansgen forwarded to Henry Haggerty and Al Moyle a memorandum outlining seven areas of MOT concern relating to the "constructability" and safety of the JTB project. On June 1, 2004, Hansgen's memorandum was forwarded to Mohammed Majboor, P.E., Design Consultant Engineer for the Department, who forwarded the memo to Lochner. Lochner reviewed its plans in light of the Hansgen memorandum and forwarded its response on June 3, 2004, to Hansgen, who reviewed the responses and added his comments. He e-mailed Henry Haggarty seven concerns he had with the MOT plans. On June 2, 2004, Allen Moyle, Jacksonville Construction Engineer, received Hansgen's and Lochner's responses regarding the MOT plans and determined that the project plans needed revisions because of safety issues. Moyle concluded that all the bids needed to be rejected in light of the MOT revisions. He transmitted a request to Cathy Thomas at the Department's headquarters to arrange a meeting with Lochner to commence revision of the plans at the earliest possible date. On June 8, 2004, Hansgen briefed the District 2 Secretary, Schroeder, and other District 2 staff members on the issues regarding maintenance of traffic issues based on his memo, a marked-up copy of the MOT sheets, and pictures. Rejection of all bids was discussed at this meeting. Mr. Hansgen testified at the formal hearing concerning his findings and his actions with the aid of the original memorandum and Respondent's Exhibits 1 and 2. Mr. Hansgen's concerns were about safety issues and included the reduction of traffic lane widths in areas to 11 feet where barrier walls would be erected on both the inside and outside medians where traffic would be traveling at 55 miles per hour. Another concern was the length of these lanes that would be restricted by concrete barriers. These barriers prevented easy access of emergency vehicles in these areas, which presented a significant hazard at this interchange, which accesses a major hospital complex. Mr. Hansgen’s also identified an inconsistency regarding where the contractor could work in an area close to the barrier wall; a portion of the roadway where a cross slope or tilting of the traveling lane created dangerous vehicle control issues; and plans to widen a portion of the roadway while vehicles traveled on the same portion of roadway which would require further narrowing of lanes. Because the State of Florida has one of the highest fatality records in the nation in work zones, the Department is very concerned about this issue. After the meeting on June 2, 2004, the Jacksonville Urban Office for District 2 recommended rejection to DOT in Tallahassee of all bids based on the need to “clarify uncertainties within the phasing of the maintenance of traffic (MOT) plans.” The recommendation of District 2 was reviewed by the Technical Review Committee, which is comprised of six voting members. On June 9, 2004, the Technical Review Committee recommended rejection of all bids on the JTB Project to the Contract Awards Committee based upon MOT safety issues. The Contracts Award Committee, composed of three voting members, met on June 15, 2004, to consider the recommendations regarding the JTB Project of the Technical Review Committee and District 2. The Contracts Award Committee concurred with the recommendations of the Technical Review Committee and District 2 and rejected all bids based upon MOT safety issues. The Department posted its notice of intent to reject all bids on June 17, 2004. The Petitioner filed a Notice of Intent to Protest the Department’s rejection of all bids with a Formal Written Protest, filed on July 1, 2004, including an appropriate protest bond. The Department’s engineers met with engineers from H.W. Lochner, Inc., to discuss the issues of concern raised in the Hansgen memorandum. The Department commissioned Lochner to revise the plans to enhance the safety features for MOT, and certain other enhancements. Lochner and the Department entered into Supplement Agreement #13 that included both the requested enhancements and the changes to accommodate the concerns referenced in the Hansgen Memorandum. Richard Kelly testified regarding “animus,” and “dislike” displayed by employees of the Department. He pointed to past decisions and actions of Department employees as proof of “dislike” and “animus." These included a Letter of Concern to the Petitioner, on April 16, 2004, from the Department outlining five areas the Department had identified as important in making a determination on the pre-qualification of the Petitioner for bidding on Department contracts for the 2004-2005 fiscal year. Also mentioned were disputed issues between the Department and the Petitioner arising during construction of the I-95/I295 Interchange Project, including Jacksonville ordinances on noise ordinance, and trees and deficiency letters from the Department to AMEC Civil. In addition, the disqualification of Morse Diesel, LLC, as the Petitioner was formerly named, from bidding on construction contracts with the State of Florida, and in 2002, the revocation of the pre-qualification of the Petitioner to bid on DOT projects were described. Ananth Prasad, P.E., who was identified by the Petitioner's witnesses as a primary source to opposition to the Petitioner, testified that he did not hold the position of State Construction Engineer in 2000, and was not involved in the decision to deny pre-qualification of Morse Diesel. Mr. Prasad also was not involved with the initial decision to revoke the pre-qualification of AMEC in 2002. Mr. Prasad does not personally hold a position on the Technical Review Committee. Mr. Prasad did not vote on the decision to recommend rejection of all bids on the JTB project. The decision to reject all bids for the JTB Project was made by the Contracts Award Committee based on recommendations from the Technical Review Committee, and District 2. The Department’s Contracts Award Committee exercised its statutory authority to reject all bids based on concerns regarding the MOT phasing.
Recommendation Based on the foregoing findings of fact and Conclusions of Law, it is Recommended that the Department of Transportation enter a final order dismissing Petitioner’s Formal Written Protest concerning the bid rejection for the project in this litigation. DONE AND ENTERED this 28th day of December, 2004, in Tallahassee, Leon County, Florida. S 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 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of December, 2004. COPIES FURNISHED: F. Alan Cummings, Esquire S. Elysha Luken, Esquire Smith, Currie & Hancock, LLP 1004 DeSoto Park Drive Post Office Box 589 Tallahassee, Florida 32302-0589 Mike Piscitelli, Esquire Vezina, Lawrence & Piscitelli, P.A. 305 East Las Olas Boulevard, Suite 1130 Fort Lauderdale, Florida 33301 Calvin C. Johnson, Esquire C. Denise Johnson, Esquire Department of Transportation 605 Suwannee Street Haydon Burns Building, Mail Station 58 Tallahassee, Florida 32399-0450 James C. Myers, Agency Clerk Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: In or about the fall of 1993, the Department issued a Request for Proposal and Bid Proposal Submittal Form (hereinafter referred to as the "RFP") for Lease No. 700:0674. Through the RFP, the Department solicited the submission of proposals to lease to the Department 5,748 square feet + 3 percent of office space in St. Lucie County for use as a probation and parole office commencing "5/1/94 or within 105 days after notification of award of bid whichever occurs last." According to the RFP, the term of the lease would be "[f]ive (5) years with an option to renew for an additional five (5) years." The probation and parole office in question is currently located in space leased to the Department by Petitioners.2 It has been at this location, which is in close proximity to the City of Fort Pierce police station, for approximately the last six years. Section A. of the RFP contained the "General Specifications and Requirements." The subject of "parking" was addressed in paragraph 7. of Section A., which provided as follows: Parking: Approximately 30 off-street spaces for the exclusive use of the employees and clients at no additional charge to the lessee. Parking space must be under the control of the bidder and be suitably paved, lined, and bumper pads installed. A minimum of two spaces must meet the requirements of the Standards for Special Facilities for physically disabled, Attachment D. BIDDER RESPONSE: a) exclusive spaces available on-site at no cost to the lessee; b) exclusive spaces available off-site at no cost to lessee. Spaces located from proposed facility. (distance) As An Option c) non-exclusive spaces available at no cost to lessee. Space located from proposed facility. (distance) Bidder's Initials Paragraph 12. of Section A. provided, in pertinent part, that "[t]he proposed space must be an existing building" and that the "[p]roposed use of this building must meet required zoning." Section B. of the RFP contained the "Space Requirement Criteria." Paragraphs 2. and 3. of Section B., which provided as follows, set forth the "Electrical requirements" and the "Telephone requirements," respectively: Electrical requirements Minimum of two duplex electrical outlets and one fourplex in each room or office including adequate additional fourplex outlets in each open clerical/file area. Facility complies with the National Electrical Code. BIDDER ACKNOWLEDGMENT Bidder's Initials Telephone requirements Minimum of one telephone outlet in each room or office including additional outlets in each open clerical/file area. All wiring, existing or to be installed, complies with the National Electrical Code, Section 8000-3, Paragraph d. BIDDER ACKNOWLEDGMENT Bidder's Initials The subject of "security" was addressed in paragraph 10. of Section B., which provided as follows: Security requirements: Security shall include but not be limited to the following: Locks on all outside doors and outside windows. Night lights on all outside doors. Night lights in parking area nearest building. Parking lot must be fully illuminated and create no dark shadows. Dead bolt locks on storage space doors. Convex detection mirrors in the lobby. Solid core doors swinging out into the lobby to separate lobby from secure areas. Electric pass-through buzzer locks (with keys) to be installed on solid core doors. Pass-through ports (similar to the Le Febure Model #BK-4431 walk up design window unit) to be used between the lobby and reception area. A two-way intercom system between reception area and the receptionist BIDDER ACKNOWLEDGMENT Bidder's Initials Paragraph 14. of Section B. listed certain "Miscellaneous requirements," including the following: PROTECTIVE ALARM SYSTEM The lessor shall, at his own expense, install or cause to be installed, maintain and arrange for 24 hours monitoring with a Certified Security Company during the term of this lease agreement the following equipment in regard to the alarm protective system: Burglar Alarm and Fire Alarm Door bugs and Window Tape Dual-Tech Motion Sensors for Computer and Typing areas Panic button with Silent Alarm Two 1/2" Bullet proof glass (lexan) in Reception and Cashier's windows . . . Staff of both sexes will be required to work in this facility during both daylight and evening hours. An environment in which staff can expect to be safe is essential. BIDDER ACKNOWLEDGMENT Bidder's Initials The "Evaluation Criteria (Award Factors)" were enumerated in Section of the RFP, which provided as follows: 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 1 and 2) applying the preset value discount rate of 5.22 percent (Weighting: 40) Option period- rental rate proposed is within projected budgetary restraints of the department. (Weighting: 10) 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. (Weighting: 15) 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. Building should be located in a professional business neighborhood.3 (Weighting: 7) Offers providing space all on the same floor. (Weighting: 5) Frequency and availability of satisfactory public transportation within one block of the offered space. (Weighting: 3) Availability of adequate dining facilities within two blocks of the offered space. (Weighting: 2) Proximity of offered space to the clients to be served by the Department at this facility. (Weighting: 5) Proximity of offered space to other Department activities as well as other public services. (Weighting: 3) Proximity of adequate parking area to the building. Must be well-lighted. (Weighting: 10) Total award factors= 100 The RFP's "General Provisions" were set forth in Section D. of the RFP. Among these "General Provisions" were the following: 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. . . . The Department agrees to enter into a lease agreement based on submission and acceptance of the bid in the best interest of the Department and the State. The Department reserves the right to reject any and all bid proposals for reasons which shall include but not be limited to the agency's budgetary constraints; waive any minor informality or technicality in bids, to accept that bid deemed to be the lowest and in the best interest of the state, and if necessary, to reinstate procedures for soliciting competitive proposals. . . . 10. Late bids, modification of bids, or withdrawal of bids: (a) Any bid received at the office designated in the solicitation after the exact time specified for receipt will not be considered and will be returned unopened. . . . Sealed bids will be received until 11:00 a.m. on November 23, 1993 . . . at which time all bids will be publicly opened and read aloud. Notification of award will be made within 30 calendar days, and shall be given either by posting the bid tabulation at the location where bids were opened or by certified United States mail, return receipt requested. . . . Failure to file a protest within the time prescribed in Subsection 120.53(5), Florida Statutes, shall constitute a waiver of proceedings under Chapter 120, Florida Statutes. Protests not filed within the prescribed time limit will not be considered. To comply with this statute, a written notice of protest must be filed with the contact person listed in the request for proposal within 72 hours after receipt of this notice. Within ten days after the notice of protest is filed, a formal written notice of protest must be filed with the contact person listed in the Request for Proposal. Any questions concerning the specifications should be directed in writing to David Smith. . . Petitioners, Gulf and Hoyt C. Murphy submitted bid proposals in response to the RFP using the form provided by the Department. At no time prior to the submission of their bids did any of them protest to the Department concerning any of the provisions of the RFP. Gulf offered the Department 5,820 net square feet of office space in a shopping plaza it owns in the City of Fort Pierce (hereinafter referred to as "Gulf's plaza"). Petitioners offered the Department the same space they currently lease to the Department. Gulf's plaza consists of several buildings which, together, take up approximately 32,000 gross square feet of space. These buildings are not fully occupied. Vacancies exist. The plaza presently has approximately 117 on-site parking spaces.4 Adjacent to the plaza, on an out-parcel, is a Wendy's restaurant which also offers off-street parking. On the completed forms that they submitted, Petitioners and Gulf agreed to meet all of the specifications and requirements set forth in the RFP, including those relating to zoning,5 off-street parking,6 security, and electrical and telephone wiring, and, in addition, proposed the following per square foot rates for the basic lease and option periods: -BASIC LEASE Petitioners Gulf First Year $13.90 $14.35 Second Year 14.65 14.35 Third Year 14.90 14.35 Fourth Year 15.20 14.70 Fifth Year 15.50 14.70 Option PERIOD First Year $15.75 $15.05 Second Year 16.00 15.05 Third Year 16.25 15.05 Fourth Year 16.50 15.40 Fifth Year 16.75 15.40 The Department, through its bid evaluation committee, evaluated each of the bid proposals in accordance with "Evaluation Criteria (Award Factors)" set forth in the RFP. As part of the evaluation process, members of the bid evaluation committee visited each of the properties offered for lease. It appeared to the committee members, upon their visit, to the Gulf property, that Gulf would be able to provide the Department with "30 exclusive [parking] spaces available on-site," as it had promised it would in the RFP. On December 16, 1993, the chairman of the bid evaluation committee sent the following interoffice memorandum to Maria Cortes, the Department's Region IV General Services Manager, concerning the results of the evaluation process: The Lease Evaluation Committee has completed its review of the bid proposals and has conducted an on-site inspection of each subject building being offered for the above referenced lease [Lease #700:0674]. The average score for each evaluation criteria is listed below by bidder number for each bid. #1 [Petitioners] #2 [Gulf] #3 [Murphy] 1. 39.20 40 34.8 2. 9.40 10 7.70 3. 15 15 15 4. 6.3 7 6.3 5. 5 5 5 6. 1 1 1 7. 1.3 2 1.3 8. 5 5 5 9. 3 3 3 10. 9.6 10 9.6 TOTAL 94.8 98 88.7 It is the recommendation of the Lease Evaluation Committee that it would be in the best interest of the Department of Correction and the State of Florida to award this bid to bid number two (2), C.G. Gulf Property Associates, L.P., a Delaware Limited Partnership. This bidder received the highest evaluation score and was the lowest bid. In evaluating the three bids that were submitted, the committee members did not take into consideration the costs that the Department would incur if the Department moved the probation and parole office from its present location to either Gulf's property or Murphy's property, inasmuch as such moving costs were not among the "Evaluation Criteria (Award Factors)" set forth in the RFP. In any event, these costs would be minimal because the Department would utilize free inmate labor to accomplish the move. By letter dated December 22, 1993, the Department advised Petitioners of its intention to award Lease No. 700:0674 to Gulf. Thereafter, Petitioners filed the protest that is the subject of the instant proceeding.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Corrections enter a final order awarding Lease No. 700:0674 to Gulf over the protest of Petitioners. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 14th day of March, 1994. 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 14th day of March, 1994.
