Findings Of Fact By Invitation to Bid for Lease NO. 590:1944, Respondent invited lease proposals for approximately 15,206 square feet of office space "located within the following boundaries: On the North, Aloma Avenue/Fairbanks Avenue the East, Semoran Boulevard the South, Colonial Drive, and on the West, Mills Avenue." The geographic area includes as many as 100 office buildings, although the invitation only generated three bids. The Invitation to Bid announced a Pre-Bid Conference on December 22, 1987. Interested parties were directed to contact Linda N. Treml, whose telephone number was provided, for "bid specifications and information regarding the space." The Invitation to Bid stated that "[a]ny questions concerning this project are to be directed to [Ms. Treml]" and "prospective bidders are encouraged to consult with [Ms. Treml] beforehand in an attempt to enable as correct a bid submittal as possible." The Invitation to Bid required that certain attachments accompany the bid proposal and referred the prospective bidder to paragraph 9 of the Bid submittal Form. The required attachments included a scaled floorplan "showing present configurations with measurements," net rentable square footage calculations using floorplan measurements, and a preliminary site layout. The Invitation to Bid stated that Respondent reserved the right to waive any minor informalities or technicality and seek clarification" of bids received, when such is in the best interest of the state. Responding to Respondent's newspaper advertisement and direct-mail solicitation for bids, James W. Boyle, who is a real estate broker active in leasing and property management, requested from Ms. Treml an Invitation to Bid and Bid Submittal Form. Mr. Boyle regularly reviews announcements of forthcoming leasing activity by state agencies. If he is aware of a building that appears to meet the agency's requirements, he contacts the building's owner or manager and informs him or her that he may have a prospective tenant. After receiving the bid materials for Lease No. 590:1944, Mr. Boyle contacted Kathryn Doyle, who is the leasing manager of Petitioner, and learned that Petitioner could accommodate Respondent's space needs for the term sought in the Lakeview 436 office building. Mr. Boyle assisted Ms. Doyle in the preparation of the Bid Submittal Form for Petitioner. In his first conversation with Ms. Doyle, Mr. Boyle ascertained that Petitioner's building carried a Semoran Boulevard street address and in fact had direct access to Semoran Boulevard. Petitioner's building lies on the east side of Semoran Boulevard, which serves as the eastern boundary of the geographic area described in the Invitation to Bid. Three bids were submitted in response to the subject Invitation to Bid. When they were opened, Ms. Treml and her supervisor, George A. Smith, determined that bids of Petitioner and a third party were nonresponsive because their office buildings were outside the geographic area specified in the Invitation to Bid. These bids were not considered further. Mr. Boyle had previously represented the owners of the FARE building several months earlier in a bid for Lease No. 590:1895. The Invitation to Bid in that case, which was issued by Respondent and named Ms. Treml as the contact person, provided that the proposed office space must be located within the following boundaries: Beginning at the intersection of US 17-92 and Colonial Drive, then west on Colonial Drive to the intersection of Edgewater Drive, then north on Edgewater Drive to the intersection of Kennedy Blvd. . ., then east on Kennedy Blvd. . . . to the intersection of US 17-92, then south on US 17- 92 to the point of beginning." Although Mr. Boyle's client was not awarded Lease NO. 590:1895 for reasons not relevant here, his client's bid, as well as the bid of another unsuccessful bidder owning a building on the east side of the highway serving as the east boundary of the geographic area, were considered responsive and thus within the specified geographic area. Ms. Treml interpreted the boundary description in Lease NO. 590:1944 differently from the boundary description in Lease NO. 590:1895. The description for Lease NO. 590:1895 defined the boundaries by "beginning" at a certain intersection, then proceeding "on" a highway, and so on. The description for Lease NO. 590:1944 defined the boundaries by identifying landmarks "on the north," then the "east," and so on. At the time of assisting in the preparation of Petitioner's bid, Mr. Boyle was also aware of an Invitation to Bid issued by Respondent for Lease NO. 590:1875. In this case, Respondent specified office space "in the following area of Brevard County, Florida: Beginning at the intersection of U.S. Highway 1 and State Road 50, then West on SR-50 to the intersection of 1-95, then North on 1-95 to the intersection of SR-406 . . . then East on SR-406 to the intersection of U.S. 1, then South on U.S. 1 to the point of beginning." In the case of Lease NO. 590:1875, the bid contact person, Lynn Mobley, issued a clarification letter stating that any building located on either side of the boundary road with an address on the boundary road would be considered to be within the boundary. Ms. Mobley and her supervisor, Ernest Wilson, who are Respondent's District 7 Facilities Services Assistant Manager and Manager, respectively, have consistently advised potential bidders that a building located on a boundary highway is included in the geographic area even though it would be outside the area if the dividing line were the centerline of the highway. Mary Goodman, Chief, Bureau of Property Management of the Department of General Services, testified that, in the course of her review of leasing activities by various state agencies, she has historically guided agencies that, if a building abuts a boundary highway but is not, strictly speaking, within it, the agency "could waive that as a minor technicality and consider it a responsive bid." Neither Mr. Boyle, Ms. Doyle, or any other representative of Petitioner spoke to Ms. Goodman prior to submitting the subject bid proposal. Ms. Treml customarily waives minor irregularities in bid submittals. However, she does not treat the location of a building outside the geographic area as a minor irregularity. To do so would be unfair to owners of other buildings outside the geographic area who took the geographic description at its face value and never submitted bids. Ms. Doyle received the bid materials from Mr. Boyle after the Pre-Bid Conference had taken place. However, Mr. Boyle elected not to attend the Pre- Bid Conference at which Ms. Treml explained, among other things, her interpretation of the specific geographic area. He chose not to attend because he felt that he would not learn anything relevant at the conference, which was attended by a representative of Intervenor. Neither Mr. Boyle, Ms. Doyle, or any other representative of Petitioner contacted Ms. Treml prior to submitting Petitioner's bid. Mr. Boyle, whose compensation in this case is entirely contingent upon a successful bid, estimates that he spent about 20 hours working on Petitioner's bid. Ms. Doyle estimates that she spent about 40 hours working on the bid. Petitioner also spent $800 in obtaining an "as-built" drawing of the space that accompanied its proposal. By letter dated February 22, 1988, Respondent notified the bidders of its decision to award the lease contract to Intervenor. Petitioner filed a notice of intent to protest the award by letter dated February 24, 1988. Ms. Treml met Mr. Boyle and Ms. Doyle on March 1, 1988, and cited the location of Petitioner's building as the only reason for the determination of nonresponsiveness. The attempt at mediation having failed, Petitioner filed a formal written protest of the award by letter dated March 3, 1988. Petitioner attached to its bid proposal an "as-built" drawing. Although drawn to scale, the drawing did not bear the measurements of the then- present interior tenant improvements, mostly walls, nor did it disclose on its face any calculations showing how the rentable area was computed from the gross area. These omissions were due to Mr. Boyle's advice to Ms. Doyle that such information would be unnecessary in this case. The omissions from Petitioner's "as-built" drawing were rendered less critical by the fact that Respondent would have the right under the lease to require the landlord, at its expense, to remove the present improvements and re- configure the space to Respondent's demands. However, one purpose of the floorplan is to show where the space is located within the building. Another purpose is to verify the rentable area calculation by showing the measurements of items, such as restrooms, that should not be included in the rentable area for which Respondent is charged rent. The drawing is supposed to show the rentable area computation. Additionally, even though Respondent could insist on a total renovation of the premises, Respondent might wish to evaluate whether it could use a portion of the existing space in order to reduce the possibility of construction delays. George A. Smith, the Senior Management Analyst for Respondent who reviewed Ms. Treml's determination of nonresponsiveness prior to the award of the subject lease, testified that the deficiencies in Petitioner's "as-built" drawing were not a "minor irregularity."
Findings Of Fact Based upon the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made: In January of 1994, FDOT issued an Invitation to Bid ("ITB") for contracts FE2494Z1 and FE2494Z2 to provide storm shutters for the FDOT facilities in Zones 1 and 2 of the Florida Turnpike. The ITB was entitled "Storm Shutters, Removable, Manufacture, Furnish and Install." Prospective bidders for the contracts were provided with a packet which included General Conditions, Special Conditions, Specifications and General Special Provisions. The General Conditions set forth the procedures for submitting and opening the bids. The Specifications called for custom-sized removable storm shutters and detailed the materials and installation procedures that were required. The bid package contained the following pertinent language in the Special Conditions, Section 1.0, entitled "Description", and in the Specifications, Section 1.0, entitled "Scope of Work": Work under this contract consists of providing all labor, materials, equipment, tools and incidentals necessary to manufacture, furnish and install galvanized steel storm panels and accessories for all of Zone 1 & Zone 2 buildings and locations as identified in the building listing listings document, see Exhibit "A" Zone 1 & Exhibit "A" Zone 2. The bid package contained the following pertinent language in Special Conditions Section 8.1, entitled "Required Documents": Bidders are required to complete and return the State of Florida "Invitation to Bid" form as well as the bid sheet(s). These forms must be signed by a representative who is authorized to contractually bind the bidder. All bid sheets and the "Invitation to Bid" form must be executed and submitted in a sealed envelope. At a mandatory pre-bid conference on February 17, 1994, the Department's representatives were available to answer questions regarding the bid package. During the pre-bid conference, John Vecchio of the Department orally advised the prospective bidders that they should return the whole bid package, including the specifications, when they submitted their bid. No written amendment to this effect was issued. The bids were opened on March 3, 1994 in Fort Lauderdale. Bids were received for each contract from at least three bidders, including Accurate and Hurst. The apparent low bidder for both contracts was Broward Hurricane Panel Co. ("Broward"). Prior to the bids being posted on March 28, 1994, Broward's bid was determined to be nonresponsive and Broward was therefore disqualified. After Broward was disqualified, Accurate was the apparent low qualified bidder for Zone 2 and Hurst was the apparent low qualified bidder for Zone 1. Hurst's bid for the contract for Zone 2 was $85,000. Its bid for the Contract for Zone 1 was $36,000. Accurate's bids for the contracts were $84,854.82 and $36,287.16, respectively. Hurst was awarded the contract for Zone 1 and that decision has not been challenged. At the same time the Department announced the award of the Contract for Zone 1 to Hurst, the Department announced its intent to award the contract for Zone 2 to Accurate. Hurst timely filed a notice of protest and a formal written protest of the proposed award of the contract for Zone 2 to Accurate. Initially, FDOT raised as a defense that Hurst had not posted a protest bond as required by Section 287.042(2)(c), Florida Statutes. At the hearing in this matter, FDOT conceded that Hurst had subsequently posted a protest bond which had been accepted by FDOT. Hurst contends that Accurate's bid should have been deemed nonresponsive because Accurate does not have the ability to "manufacture" the specified product in its own facility. The 2 inch corrugated shutter required by the ITB has to be shaped on a special type of machine that rolls, presses and forms the metal. Hurst owns and maintains at its Opa-Locka facility a rolling mill capable of forming the panels to the bid specifications. Accurate is in the business of supplying the types of products sought by the ITB in this case. However, Accurate does not own the kind of machine necessary to shape the metal. The evidence established that for many years, Accurate has had a continuing business relationship with a local subcontractor, Shutter Express, that rolls, presses and forms raw material supplied by Accurate in accordance with Accurate's specifications. Shutter Express has the capability of fabricating shutters with a 2 inch corrugation in accordance with the ITB. Accurate is equipped to attach the headers and sills, drill the necessary holes, complete the assembly and install the final product. The ITB in this case did not preclude subcontracting any or all of the work specified. While the description of the work in the ITB includes the term "manufacture", this reference should not be read to mean that only those companies that were able to fabricate the entire product at their own facility could properly respond to the ITB. There is no logical justification for such a narrow interpretation. Only a few companies have the ability to completely fabricate the shutters on their own property. At the prebid conference, there was discussion amongst the prospective bidders about subcontracting the fabrication work and the FDOT representatives did not raise any objections to such an arrangement. It was widely understood by the parties present at the pre-bid conference that the Department was not interpreting the ITB in the restrictive manner now urged by Hurst. Such a reading of the ITB would have precluded from the bidding process a number of companies such as Accurate that routinely supply and install shutters. Hurst also contends that the bid proposal submitted by Accurate should be deemed nonresponsive because Accurate failed to include the entire ITB with its proposal in accordance with the oral instructions at the pre-bid conference. Hurst's proposals included the entire ITB. As discussed below, Accurate's proposal did not include the entire ITB. FDOT determined that all essential pages were included in Accurate's response and the evidence did not establish that this conclusion was arbitrary, capricious or fraudulent. Paragraph 6 of the General Conditions of the ITB provided: ADDITIONAL TERMS AND CONDITIONS: No additional terms and conditions included with the bid response shall be evaluated or considered and any and all such additional terms and conditions shall have no force and affect and are inapplicable to the bid. As noted above, at the prebid conference held on February 17, 1994, an FDOT employee told all prospective bidders to return the entire bid package when making their submittals. This request that the entire bid package be returned was simply meant as a protection for the bidder to ensure that all the necessary documents referenced in Section 8.1 of the Specifications were submitted. Other than those documents referenced in Section 8.1 of the Specifications, FDOT had no interest in having the remaining portion of the ITB submitted with a proposal. Accurate's submittal contained every document required by Section 8.1 of the Specifications. Accurate's proposal did not contain pages 3 through 12, 14, 15 and 17 through 20 of the ITB, but did include pages 1 and 2, 13, 16, 21 and 22 along with a signed Form PUR 7068 and a signed acknowledgment of Addendum In other words, the submittal contained a signed and completed Bidder Acknowledgment, completed Bid Price Forms for Zones 1 and 2, a signed copy of Addendum #1, a completed copy of the Ordering Instructions, and a signed, but not notarized, statement regarding public entity crimes. 1/ In addition to the "REQUIRED DOCUMENTS," set forth in Section 8.1 of the Specifications and quoted in Findings of Fact 6 above, the ITB included Section 8.2, "PUBLIC ENTITY CRIMES STATEMENT" which provides: Any person submitting a bid or proposal in response to this invitation should execute the enclosed form PUR 7068, SWORN STATEMENT UNDER SECTION 287.133(A), FLORIDA STATUTES, ON PUBLIC ENTITY CRIMES, including proper check(s) provided, and submit it with the bid/proposal or within 72 hours of the bid opening. Page 7 of the ITB provided in pertinent part: 10.0 BID PREFERENCE IDENTICAL TIE BIDS - Preference shall be given to businesses with drug-free workplace programs. Whenever two or more bids which are equal with respect to price, quality and service are received by the State or by any political subdivision for the procurement of commodities or contractual services, a bid received from a business that certifies that it had implemented a drug-free workplace program shall be given preference in the award process. . . . Accurate's proposal did not include a certification that it was a drug-free workplace in accordance with this provision. However, such a certification is only used by the Department as a tie-breaker. In other words, in the event of identical bids, any firm with a drug-free workplace would get preference. Since there were no tied bids in this case, certification was totally irrelevant. When the bids were opened, Mary Bailey, the contracts administrator for the Department, noticed that Accurate's submittal was thinner than the others and asked Accurate's representative, Richard Johnson, about the remaining pages. Mr. Johnson replied that the other pages were in his truck and offered to retrieve them. Ms. Bailey told him there was no need to do so. Section 10 of the General Conditions in the bid package provides as follows: As the best interest of the State may require, the right is reserved...to reject any and all bids or waive any minor irregularity or technicality in bids received... It does not appear that Accurate has obtained any competitive advantage as a result of its failure to include the entire ITB with its bid proposals. Even if the oral instructions at the pre-bid conference are deemed to have modified the ITB so that the entire bid package should have been submitted, Accurate's failure to include the entire ITB with its response should be considered a minor technicality, pursuant to Section 10 of the General Conditions cited above, that can and should be waived in evaluating the responsiveness of the bid. Similarly, the failure to have the Form PUR 7068 notarized may have rendered Accurate's bid proposals incomplete, but not necessarily nonresponsive. This oversight can be easily corrected without giving Accurate a competitive advantage.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding the bid submitted by Accurate to be responsive and dismissing the challenge filed by Hurst. DONE and ENTERED this 24th day of June 1994, at Tallahassee, Florida. J. STEPHEN MENTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of June 1994.
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 was justified in cancelling the award of bid of HRS Lease No. 590:2054 to Petitioner, BOOZER, on the basis that it was nonresponsive. Whether Respondent acted fraudulently, arbitrarily, illegally or dishonestly in issuing an award of HRS Lease No. 590:2054 to Intervenor rather than to Petitioners or some other bidder.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: HRS caused an invitation to bid to be advertised regarding Lease No. 590:2054 on January 3, 1989 and January 10, 1989. The Invitation to Bid required that all bids be received on or before 2:30 p.m. February 1, 1989, for 9,168 net rentable square feet, plus or minus 3%, of existing office space. A pre- bid meeting was scheduled for January 11, 1989. The advertisement also advise that the bid specifications could be obtained from the Orlando Regional Office of HRS, and that the State of Florida reserved the right to reject any and all bids. The material provisions of the bid specifications at issue in this proceeding are: The space be made available on September 1, 1989 or within 175 days after bid is finalized. The proposed space must be in an "existing building", which was: defined to mean "dry and capable of being physically measured to determine net rentable square footage at the time of bid submittal". The bidder provide 2 clear photographs of the exterior front of the proposed facility and 2 scaled (1/8 inch or 1/4 inch 1 foot preferred) floor plan showing present configurations with measurements that equate to the net rentable square footage (HRS Exh. 1, General Specifications Requirement No. 10(a)) Emphasis in original). Building(s) in not more than 2 locations provided the facilities are immediately adjacent to or within 100 yards of each other. Prior to the pre-bid conference, but after the initial publication of the bid invitation, representatives of NOTTUS contacted Ernie Wilson, the facilities services manager for District 7, HRS, to inquire regarding the propriety of submitting a bid for space in two buildings in which HRS presently had facilities, together with a facility that was greater than 100 yards from the existing facilities. At the time of the inquiry, NOTTUS was leasing facilities to HRS at its Lipscomb facility in Palm Bay, Florida. A portion of the square footage that NOTTUS inquired about leasing to HRS was the remaining square footage in two buildings that HRS partially occupied at that time. All of the premises submitted by NOTTUS under its bid package were located in the Woodlake PUD, which is all under single ownership. A representative from HRS advised the representative from NOTTUS that: the issue regarding the proximity of the locations would not be addressed as a bid specification, but rather, that would be a matter to be weighed by the evaluation committee in analyzing the bids. the bid proposal to be submitted would actually be for two locations as a portion of the space offered by NOTTUS was to be located in buildings in which HRS presently maintained facilities. The submittal of the bid package regarding the premises subject to occupancy by HRS, as ultimately submitted by NOTTUS, would definitely not disqualify the bid submittal. Mr. Wilson also received telephone calls from BOOZER and a third bidder making inquires regarding the bid package. The Pre-bid conference was held on January 11, 1989. No objections or questions regarding the bid specifications as to be utilization or definition of the terms "existing building" and "present configuration" were raised at that time. At no time prior to the submission of the bids were any objections or questions raised by BOOZER regarding the utilization of the term "existing building" or the term "present configuration" as those terms were defined within the bid specification. Each of the Petitioners in this action, the Intervenor, as well as two other parties, submitted bids to HRS within the time requirement set forth in the bid documents. The bids were opened at the time and place reflected in the aid documents and Invitation to Bid. Subsequent to the opening of the bids, John Stewart, who is Ernie Wilson's supervisor, and Ernie Wilson reviewed the bid packages submitted for Lease No. 590:2054 and made a determination as to which bids were responsive. As a result of that evaluation, a determination was made that all five bidders were responsive. These bidders were the Petitioner, Fred D. BOOZER, the Intervenor, Nottus, Inc. the Petitioner, Trust NB-1 Micah G. Savell and Professional Center V. Inc. These bid proposals were then submitted to the evaluation committee who viewed the property of each of the bidders on February 13, 1989. The bid documents of BOOZER contained an additional document, i.e., a site plan, which reflected that the premises subject to his bid proposal were an "existing building". The area submitted for the bid was shaded reflecting the entire square footage submitted for bid as being "in existence." The drawing further reflected the "existing building" as being the "proposed HRS building". The premises subject to the Petitioner's, BOOZER, bid were not in existence, as that term was defined in the bid specifications, in that approximately 2500 square feet had not yet been constructed. Two walls, a floor slab and a roof were not in existence. The only improvements located therein were palm trees, grass and a sidewalk. Petitioner stipulated that the area occupied by the palm trees, grass and sidewalk was in fact "not dry". The existing building at 2225 South Babcock Street that was dry at the time of the bid opening constituted approximately 6,900 square feet of premises subject to Petitioner's bid. At the time of the inspection, the Petitioner, BOOZER, was present. At no time did BOOZER indicate that the total facility bid was not in existence. The members of the evaluating committee who viewed the property for purposes of evaluating the bid were not aware of the fact that the entire premises subject to BOOZER's bid proposal was not in "Existence" and "dry". The floor plan showing the present configuration of BOOZER's facility reflected an open floor space for the area occupied by the palm trees, grass and sidewalk. The palm trees, grass and sidewalk were not reflected in the present configuration drawing. Both the floor plan and site plan were prepared by BOOZER's son with his approval. In evaluating the respective bid proposals, the evaluation committee rated the properties as follows: Fred D. BOOZER - 450 points Nottus, Inc.- 433 points Micah Savell - 384 points Trust NB-l - 360 points Professional Center V. Inc.- 357 points The location requirement found in Article D.3(b) of the bid package was taken into account. In evaluating the Nottus bid, including a zero rating from one of the evaluation committee members. As a result of the points awarded by the evaluation committee, a determination was made to award the bid to BOOZER, who was notified of this award on or about March 14, 1989 by letter dated March 14, 1989. On or about March 20, 1989, Petitioner, BOOZER, obtained a construction permit from the City of Melbourne to construct a fire wall and framing for additional shell building. This building permit was for the purpose of enclosing the area that was occupied by the palm trees, grass and sidewalk at the time of the bid proposal being submitted. Upon being awarded the bid, Petitioner, BOOZER then made a decision to commence construction to complete the premises subject to his bid proposal, and had expended $28,000 thereon through the hearing date. On or about March 29, 1989, HRS, through Ernie Wilson and Lynn Nobley, discovered the fact that approximately 2,500 square feet represented as being a part of the existing building, in fact was not existing pursuant to the bid specifications. At the time of this discovery, construction under the construction permit had not been completed. Mr. Wilson advised BOOZER at that time that he was concerned that BOOZER's bid was nonresponsive because the premises subject to the bid proposal were not in an "existing" building at the time of the bid submittal. The normal procedure for HRS in awarding a bid where the initial award is cancelled or thrown out is to award the bid to the second and next best lowest bidder. It is not the normal practice of the HRS evaluation committee to measure the applicable properties at time of evaluation to determine net rentable square footage. At the time of discovery of the foregoing status of BOOZER's building, Ernie Wilson, contacted a Nottus representative, Fred E Sutton, its President, to advise him of the possible nonresponsiveness of BOOZER's bid and requested information to determine whether Nottus, the second low bidder, still had facilities available pursuant to its bid documents and whether Nottus would agree to continue to continue to be bound by the terms thereof. Mr. Sutton advised Ernie Wilson that the facilities were still available and that Nottus would agree to abide by the terms of its bid proposal. Following the procedural steps necessary to advise the appropriate individuals within HRS of the possible nonresponsive bid by BOOZER, Ernie Wilson was advised by the Director of HRS General Services, King W. Davis, by letter dated April 2, 1989 to withdraw the award for the proposed lease 590:2054 from BOOZER because of approximately 2,500 feet of nonexisting space. He was also instructed to award same to Nottus as the second lowest bidder. On or about April 14, 1989, Ernie Wilson advised BOOZER of the Notice of Withdrawal of the award from BOOZER and award to Nottus, together with the reasons therefor, which was received by BOOZER on April 17, 1989. Petitioner, BOOZER, timely initiated these actions by filing his Notice of Intent to appeal the withdrawal of the award of bid to him and the award to Nottus, and by timely filing a formal written protest and request for formal hearing. Attachment "D" of the bid package required the submittal of a proposed plan to a division of the State Fire Marshal for review of any proposed construction or renovation to determine whether such construction or renovation complied with the uniform fire safety standards. Said plans were required to be prepared by licensed architects and engineers for certifications outlined in Attachment "D". These matters were all to be completed prior to the commencement of any revocation or alteration. Petitioner, BOOZER, commenced said improvements prior to said approval. In fact, BOOZER submitted no plans in compliance with these requirements prior to construction. Petitioner, BOOZER, is a licensed builder in the State of Florida, and has been for ten years. BOOZER further acknowledged that at the time of signing and submitting the bid proposal, he certified that he understood the terms of the bid specifications and agreed to be bound by them. TRUST NB-1 attempted to initiate an appeal of the award of the bid to Nottus by submitting a facsimile "notice of protest" to HRS predicated on the award of the bid to Nottus occurring greater than sixty (60) days following the bid opening date. TRUST NB-1 received notice of the award to Nottus on April 18, 1989 and attempted facsimile delivery on April 21, 1989. The facsimile "Written Notice of Protest" was not filed until April 25, 1989. The regular mail receipt of said Notice was received by HRS and filed on April 24, 1989. 38. The "formal written protest" was filed with HRS on May 1, 1989. 39. signature The facsimile Notice of Intent to Protest did not contain of a representative of TRUST NB-1. the original 40. Ernie Wilson is the custodian of records for bid protests for HRS, District 7, and is also the person designated in the bid documents as the contact person for the bid on Lease No. 590:2054. TRUST NB-1 was ranked number four in relation to the five bids submitted. Bidder Micah Savell, not a party to these proceedings, is the next low bidder after BOOZER and Nottus, Inc.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent enter a final order: (a) Finding the bid of Petitioner, BOOZER, to be unresponsive and that the cancellation of the award by Respondent was justified. Find the bid of Intervenor, NOTTUS to be unresponsive. Find that Petitioner, TRUST NB-1, lacks standing and its protest should be dismissed. Reject all bids. DONE AND ENTERED this 21st day of July, 1989, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 21st day of July, 1989. APPENDIX Proposed Findings of Fact by Petitioner, Fred O. Boozer: 1-5 Rejected. 6 and 7 Accepted as incorporated in the Recommended Order. Proposed Findings of Fact by Intervenor, Nottus, Inc. Accepted. Accepted as modified. 3-30. Accepted. 31. The first two sentences rejected as argument and not supported by the evidence. Last sentence in paragraph accepted. 32-40. Accepted. COPIES FURNISHED: Thomas Houck, Esquire 312 South Harbor City Boulevard Suite 1 Melbourne, Florida James A. Sawyer, Esquire District 7 Legal Counsel Department of Health and Rehabilitative Services 400 West Robinson Street Suite 911 Orlando, Florida Sam Power Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Gregory L. Coler Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 John Miller General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700
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 The ultimate issue for determination at formal hearing was whether the intended decision by the Palm Beach County School Board to reject all bids on the Gladeview Elementary School project, Project No. 125191702/205840, departs from the essential requirements of law.
Findings Of Fact Palm Beach County School Board (Respondent) issued a request for proposals (RFP), soliciting sealed bids for the reroofing, renovating and replacing the HVAC of Gladeview Elementary School, Project No. 125191702/205840 (Gladeview Elementary Project). The RFP and bid documents for the Gladeview Elementary Project were contained in the "Project Manual." The addendum to the RFP required all bids to be submitted by April 20, 1993 at 2:00 p.m., at which time all bids were to be publicly opened. Pertinent to the case at hand, the RFP further required a bid bond or cashier's check for not less than five percent (5 percent) of the bid and notified bidders that Respondent had the right to reject all bids and waive any informalities. Section 00100 of the "Instruction to Bidders" in the Project Manual is material to the case at hand and provides in pertinent part: BIDDING PROCEDURES: * * * Preparation and Submission of Bid Proposal Form: [P]roposals containing any conditions, omissions, unexplained erasures, alternates, items not called for or irregularities of any kind may be rejected by the Owner. . . (e) Proposal Submittal shall contain the following documents: Section 000443 - Public Entity Crimes Statement Section 00310 - Proposal Form Section 00410 - Bid Bond or otherwise acceptable Bid Guarantee (see Paragraph 3.08). Manufacturer's Letter of Intent to Warranty (See Section 7610) and will be enclosed in a sealed envelope. . . * * * 3.08 Bid Guarantee: Bids shall be accompanied by a bid guarantee of not less than five percent (5 percent) of the amount of the Base Bid, which shall be a Cashier's Check or a Bid Bond (Bid Bond, see Section 00410) made payable to the Owner. * * * 3.10 Subcontractors: At the time of the Bid Opening each Bidder submitting a Bid shall submit a written list of the major Subcontractors; namely, structural steel, membrane roofing, preformed metal roofing & siding, plumbing, HVAC, electrical and general contractor, on Form 00420 (List of Major Subcontractors). The list shall be placed in a "sealed envelope". . . Within five (5) Owner Business days after the Bid Opening, the apparent low Bidder(s) shall submit Form 00430) (List of Subcontractors), completed in full to the Owner ... Failure to submit these lists within the time period specified herein shall result in a non- responsive Bid. * * * REJECTION OF BIDS: 6.01 The Bidder acknowledges the right of the Owner to reject any or all Bids and to waive any informality or irregularity in any Bid received. In addition, the Bidder recognizes the right of the Owner to reject a Bid if the Bidder failed to furnish any required Bid security, or to submit the data required by the Bidding Documents, or if the Bid is any way incomplete or irregular; to reject the Bid of a Bidder who is not in a position to perform the Contract; and to re-advertise for other or further Bid Proposals. SUBMISSION OF POST-BID INFORMATION: * * * 7.02 The selected Bidder shall within eight (8) Owner business days after notification of Board Award submit the following: . . . 6. Photocopies of prime Contractor's certification and/or registration and either state registrations or Palm Beach County Certificate of Competency of all Subcontractors. . . * * * AWARD OF CONTRACT: The Contract, if awarded by the Owner, will be awarded to the lowest bona fide responsible Bidder; provided the Bid is reasonable and it is in the interest of the Owner to accept the Bid. The method of determining the lowest bona fide Bid from Bidders shall be the Base Bid price plus or minus Alternate Prices listed on the Bid Proposal Form which are accepted by the Owner. Alternates will be considered for acceptance by the Owner as set forth in the Alternate section of the Specifications, Division One-General Requirements, Section 01030-Alternates. The bid opening was conducted on April 20, 1993, at which time the bids were tabulated and the Bid Tabulation Form (BTF) was posted. Respondent received bids from Bonner Roofing whose base bid was $869,000, S&S Roofing, Inc. (Petitioner S&S Roofing) whose bid was $693,000, Therma Seal Roofs, Inc. (Petitioner Therma Seal) whose bid was $691,500, Titan Roofing, Inc. (Petitioner Titan Roofing) whose base bid was $689,500, and Trans Coastal Roofing, Inc. (Petitioner Trans Coastal) whose base bid was $884,248. The BTF showed that the rank of the bids, beginning with the apparent lowest bidder to the apparent highest, were (1) Petitioner Titan Roofing, (2) Petitioner Therma Seal, (3) Petitioner S&S Roofing, and (4) Petitioner Trans Coastal. The BTF showed further that Bonner Roofing failed to submit with its bid the Manufacturers Letter of Intent which was a required document. Bonner Roofing's bid was rejected. Within minutes after the bid opening, Respondent's staff discovered that Petitioner Titan Roofing had failed to list its major subcontractors on Form 00420, List of Major Subcontractors, even though it had submitted the form. Respondent's staff contacted Petitioner Titan Roofing by telephone and requested the list. Petitioner Titan Roofing's failure to submit a completed Form 00420 was inadvertent and not intentional. At the time of the bid opening, Respondent's staff had not considered Petitioner Titan Roofing's failure to submit a completed Form 00420 to be a major irregularity, but a minor one. Consequently, Respondent's staff considered the failure to be a waivable irregularity. Unable to discern if it had the original figures submitted by its major subcontractors, Petitioner Titan Roofing telephoned them to verify the figures it had. Within two hours, Petitioner Titan Roofing had faxed to Respondent's staff a completed Form 00420. Respondent's recommendation or intended action was to award the bid to Petitioner Titan Roofing as the apparent lowest bidder. Petitioner Therma Seal, the apparent second lowest bidder, filed a timely protest of Respondent's intended action. Respondent held an informal hearing on the protest, and the recommendation was to reject all bids. In prior bids, a bidder's failure to submit Form 00420 at bid opening has been considered a major irregularity by Respondent. The purpose of Form 00420 is to prevent or guard against bid shopping. Respondent's action has been to routinely reject bids with such a deficiency. Petitioner Therma Seal failed to submit with its bid the required bid bond of 5 percent of its base bid. Failure to submit a required bid bond is considered by Respondent to be a major irregularity. Furthermore, Petitioner Therma Seal was not a licensed general contractor. It listed itself as the general contractor on Form 00420. All bids failed to comply with the roofing warranties and specifications, which Respondent considers to be a major irregularity. Respondent's budget, based upon its architect's construction estimate, for the Gladeview Elementary Project was $652,130. All bids were over budget. Prior to the formal hearing, Respondent Trans Coastal notified the parties that it was not proceeding with its protest.
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 the Gladview Elementary School project, Project No. 125191702/205840, and re-advertise. DONE AND ENTERED this 7th day of September 1993 in Tallahassee, Leon County, Florida. ERROLL H. POWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of September, 1993.
Findings Of Fact On June 17, 1983, Respondent, Department of State, Bureau of Systems Management, issued Invitation to Bid No. DOS 80-82/83 to prospective bidders to provide 22,059 square feet of office space for use as offices for the Division of Licensing and Division of Corporations in Leon County, Florida. According to the general specifications and requirements, the space was to be located within one mile of the Capitol Building and available by August 1983, or within 30 days after execution of a valid lease. Sealed bids were to be received no later than 2:15 p.m. on July 27, 1983. At that time, all bids would be publicly opened. Petitioner, George E. Winchester, a partner in George and Lewis Winchester Construction Company, is the current lessor to Respondent of space used by the two divisions that will utilize the space requested in the bid. The monthly rental amount is $12,639.50. Although the lease expired on August 11, 1983, Respondent continues to lease the office space from Petitioner while this controversy remains pending. As is pertinent here, paragraph eleven of page seven of the Invitation to Bid contained the following miscellaneous requirements: Pest control. Soundproofing in specified areas (see floor plan Attachment H). Office must be prewired for telephone service (DMS-100 telephone system) 50-pair cable to support 20-button sets. Special climate control for selected areas where a concentration of heat-producing machines are located. All such equipment must be maintained at a maximum of 78 degrees. Capability for coaxial cable to be installed in all areas at lessor's expense. Capability for lessee to install additional coaxial cable at a later date. Office space must be able to receive dedicated electrical outlet for EDP and other specialized equipment. Offices to be prewired to provide for public announcement system in specified areas (Space 8,060 square feet). Offices to be located on one floor in reasonably close proximity (desired for Space 8,060 square feet). Window coverings to be provided on all windows. If office space has structural pillars or protrusions, lessee reserves the right to require decorative treatment of those struc- tures. Attached to the Invitation to Bid was a one-page document entitled "Attachment H" which provided a suggested configuration of offices and rooms. The "specific electrical, telephone and soundproofing requirements" within the office area were also reflected in Attachment H. Paragraph five of the General Conditions of the Invitation to Bid provides as follows: INTERPRETATIONS Any questions concerning conditions and specifica- tions shall be directed in writing to this office for receipt no later than ten (10) days prior to the bid opening. Inquiries must reference the date of bid opening. No inter- pretation shall be considered binding unless provided in writing by the State of Florida in response to requests in full compliance with this provision. Petitioner was in possession of The Invitation to Bid for several weeks prior to The bid deadline of July 27, 1983. However, because he considered the matter to he only a "small lease," and one which would not take a great deal of time to prepare, he waited until five or six days before July 27 to begin preparations for submitting a bid. In reviewing paragraph eleven on page seven of the general specifications and requirements, he concluded that items 2, 3, 4, 5, 7, 8, 9 and 10 were too "vague" to prepare a bid. In an effort to clarify the alleged ambiguities, he sought assistance from Department personnel on Thursday, July He was advised to contact a Mr. Cushing, chief of the Department's Bureau of Management Systems. He did so by telephone on July 22 but did not receive satisfactory information. Finally, on the afternoon of July 26, he met with five or six employees of the Department of State to discuss the items in question. After the meeting, Winchester did not indicate he was still confused. Based upon Winchester's questions, the Department decided to issue a revised page seven. The revisions were not substantive in nature but were merely intended to provide further clarification and assistance to the bidders. As revised, paragraph eleven of page seven provided as follows: Pest control (once monthly--professional exterminator.) Soundproofing in specified area (see floor plan Attachment H). (Maximum soundproofing acoustical tile to be used in two rooms-- llx7 and 18x10--which will house computer equipment; other rooms specified for sound- proofing should have material to prevent voices from being heard through the walls.) Office must be prewired for telephone service (DMS-100 telephone system) 50-pair cable to support 20-button sets. Special climate control for selected areas where a concentration of heat-producing machines are located. All such equipment must be maintained at a maximum of 78 degrees. Capability for coaxial cable to be installed in all areas at lessor's expense. Capability for lessee to install additional coaxial cable at a later date. Breaker box or fuse box must be able to receive three 220 lines for EDP and other specialized equipment. Offices to be prewired to provide for public announcement system in specified areas (Space A 8,060 square feet only). (Muzak-type sys- tem with PA capability is acceptable.) Offices to be located on one floor in reasonably close proximity (desired for Space A 8,060 square feet). Window coverings to be provided on all windows (flame-retardant drapes or mini-blinds) If office space has structural pillars or protrusions, lessee reserves the right to require decorative treatment of those struc- tures. (The structural protrusions shall be made compatible with the wall areas in the rooms in which they are located.) All three prospective bidders were either advised by telephone or in person that afternoon that a revision was being issued. The Petitioner received his copy shortly after his meeting with the Department's representatives. After receiving the revision, Winchester called several subcontractors the next morning to obtain price quotations for the various items. Although he still maintained the bid was a guess" and he did not know if he could make any profit, he was nonetheless sufficiently informed to prepare specific prices for each item he had questioned. The bid package was filed prior to the deadline. Winchester did not use other professionals to interpret the specifications or to assist him in the preparation of his bid. He also did not avail himself of the provisions in paragraph five of the General Conditions which permitted him to make written inquiry to the Department concerning any alleged ambiguities. On the afternoon of July 27, 1983, the bids, numbering three, were opened by Respondent. 1/ Thereafter, on August 1, 1983, the Director of the Department's Division of Administration wrote Intervenor/Respondent, Hobco, Inc., a letter which reads in pertinent part as follows: In response to your bid to provide 22,089 square feet of office space to the Department of State, you are hereby notified that you are awarded the bid. The award prompted the instant proceeding. Although item 9 stated that offices were "to be located on one floor in reasonably close proximity," this was not a mandatory requirement. Rather, it was a preference on the part of the Department. This was confirmed by a letter from the Department to Crown Properties, another bidder, which had made a written inquiry to the Department on June 23, 1983, concerning that provision. Further, the specifications indicate that one floor was "desired," and that in the weighting process, the providing of one floor was not a dispositive attribute in determining the award. The evidence is conflicting as to whether certain items within the miscellaneous requirements in question are vague and ambiguous. However, it is found that the evidence is more persuasive that the specifications were sufficiently clear to allow a bidder to formulate a competitive bid to lease office space. A reading of the specifications themselves, including Attachment H, a visual inspection of the presently leased premises, and the use of other professionals for assistance would provide sufficient information relative to soundproofing, communications and electrical requirements to prepare a bid that would conform with specifications. Moreover, the General Conditions of the Invitation to Bid provided all prospective bidders with the opportunity to make written or oral inquiry concerning any "conditions and specifications" that they questioned.
Recommendation Based on The foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent award Invitation to Bid No. DOS 80-82/83 to Hobco, Inc. DONE and ENTERED this 9th day of November, 1983, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 November, 1983.
The Issue The primary issue for determination is whether Respondent's decision to rescind a previous notice of award of a bid to Petitioner First Master Lessors, Inc., on the basis that the original bid was nonresponsive, was appropriate. If rescission of that bid award was proper, a secondary issue is whether Respondent was also justified in rejecting the competing bid submitted on behalf of Petitioner DSJ Realty Company Inc.
Findings Of Fact Respondent issued an Invitation To Bid in order to obtain a leasehold of 15,397 square feet of office space to house operations of its child support enforcement office in Lakeland, Florida, for a term of seven years with an option to renew the lease for two additional three year periods. The Invitation To Bid (ITB) states Respondent's reservation of the right to reject, if in the best interest of the State of Florida, any and all bids. Further, the invitation states a number of conditions that submitting bidders must meet in order for their bids to be deemed responsive. Among the stated conditions is the requirement that bids be submitted on the standardized bid submittal form enclosed in the ITB in compliance with conditions specified on that form. Further, bidders are directed to complete the bid submittal form providing acknowledgements requested by the form. Another stated condition of the ITB is the requirement that a bidder be the owner of record of the facility and parking areas offered for lease; or, if a lessee seeking to sublease, submit with the bid proposal documentation of authority to sublease the facility and parking areas. A further ITB condition requires each bid to be signed by the owner, corporate officers or legal representative of the bidding entity. Corporate, trade or partnership titles of the bidding entity are to be stamped or typewritten beside the actual signature. Bid submissions signed by an agent are required to be accompanied by written evidence from the owner of record documenting the agent's authority. All bid submittal signatures are to be notarized. Page 4 of the standardized bid submittal form enclosed in the ITB requires, in paragraph 11, that any bid offering premises for consideration (including parking areas), which are presently occupied or which will covered by other active leases on the anticipated lease effective date, must be accompanied by documentation executed by those tenants indicating their acknowledgement of the bid and their ability to vacate the premises by the proposed lease effective date. Submitting bidders are required to indicate whether this requirement is applicable to their bid. Page 4 of the standard bid submittal form contains a number of other conditions which require agreement by the submitting bidder. Proof of the bidder's agreement to those conditions is to be documented by the bidder's initials on each page of the bid submittal package and the bidder's notarized signature on page 16, the submittal form's concluding page. Among the conditions on Page 4 of the form is the agreement of the successful bidder to provide leased space to Respondent for exclusive use on a 24 hour basis, seven days per week during the term of any lease resulting from the bid. This condition further explicitly states that the space to be leased will be fully occupied during normal working hours of 8 a.m. to 5 p.m. during the week and may be fully or partially occupied at other times as necessary in Respondent's discretion. Respondent's bid request specified that bidders must offer a minimum of 65 parking spaces in conjunction with premises proposed for lease. Of those spaces, two spaces were required to meet requirements of accessibility for handicapped parking. Of the remaining spaces, 52 spaces were required to accommodate full size automobiles. All parking was required to be provided as part of the lease cost to Respondent and under the "control of the bidder, off street, suitably paved and lined." On May 16, 1989, five bids were opened, including those submitted on behalf of Petitioner DSJ Realty Company Inc. (DSJ), and Petitioner First Master Lessors, Inc. (MASTER). Out of the five bids opened, only the bids of MASTER and DSJ were determined to be responsive. After evaluation of the bids by Respondent's personnel, the bid was awarded to MASTER on July 6, 1989. On July 11, 1989, and in response to the award to MASTER, a notice of intent to protest the award was filed by counsel for Dale S. Jones, as trustee; DSJ; and Elizabethan Development, Inc. (ELIZABETHAN). By letter dated July 12, 1989, Alan Taylor filed a protest of the lease award to MASTER. That letter simply stated its efficacy as a protest with the words "[w]e hereby protest the award of lease # 590:2087 to First Master Lessors, Inc." No particular factual or legal basis for the protest was stated. Taylor is associated with ELIZABETHAN and his letter is typed on stationary of that business entity. Taylor, designated the bidder on page one of the DSJ bid submittal, was authorized to act solely on behalf of DSJ in the submission of its bid by its president, Dale S. Jones, Jr. Documentation of that authority is contained in a May 8, 1989 memorandum attached to the bid package. There is no documentation in the bid submittal package of DSJ that Taylor was empowered to act on behalf of ELIZABETHAN, or that ELIZABETHAN was authorized to act on behalf of any entity in regard to the bid submittal. While not set forth in the bid package, testimony at the final hearing establishes that Jones is the sole owner of DSJ. Subsequent to the filing of the DSJ protest, Respondent determined to reject the bids of MASTER and DSJ as nonresponsive. By letter dated August 28, 1989, Respondent informed both counsel for DSJ and MASTER of this decision. As set forth in the August 28, 1989 letter, Respondent's decision to reject the bid of DSJ was based upon the failure of DSJ's bid submittal to reflect that its agent, Alan Taylor, or the proposed lessee designated in that bid submittal, DSJ Realty Company, had control of the property offered for lease to Respondent. The August 28, 1989 letter also stated Respondent's rejection of MASTER's bid due to a lack of control of the property sought to be leased, specifically control over parking spaces to be provided in conjunction with the premises to be leased. MASTER's bid submittal stated that the bid requirements in paragraph 11 of the bid submittal form requiring documentation of acknowledgements by any existing tenants of the premises (including parking areas) offered for lease, and ability of those existing tenants to vacate the premises, was not applicable. In response to the bid requirement for 65 parking spaces, MASTER's bid proposed 17 "exclusive" spaces on site and 48 "nonexclusive" spaces off site. An attachment to the bid response was a copy of a letter dated June 10, 1983, from the First Christian Church to a predecessor of MASTER, First Bank of Lakeland. The church, located across the street from the site proposed to be leased to Respondent by MASTER, granted "permission to the First Bank of Lakeland to use our parking lot for the convenience of their employees." Subsequent to the opening of bids and receipt of DSJ's bid protest, MASTER provided Respondent with another letter from the church reciting permission for MASTER to use 48 spaces within the church parking lot for the parking of Respondent's employees and clients, provided that the church reserved the right to use those spaces at any time upon the giving of one week's written notice to MASTER. The church also reserved the right to cancel the agreement at any time upon the giving of 60 days written notice. The letter was dated May 15, 1989. Also, as established at the final hearing, yet another letter was sent to MASTER's authorized agent from the church. That letter documents the rejection by the church of any "formalization" of a reciprocal parking arrangement with regard to the premises proposed to be leased by MASTER. However, the letter, dated July 20, 1989, restated the church's consent to the use of the parking lot by tenants of the premises proposed for lease by MASTER in accordance with its previous letter of May 15, 1989. Another letter attached to the bid submittal of MASTER, is also dated May 15, 1989. Directed to Respondent's facilities services manager, this letter is signed by an individual named Geneva Pettus as "[a]gent for First Master Lessors, Inc." The letter signed by Pettus references the 1983 letter from the church and states in pertinent part: We further guarantee your parking requirements during the term of the lease and will accommodate such spaces either within our own building or other locations if changes in the above parking facilities should occur. The MASTER bid submittal contains no documentation of authority of Geneva Pettus to act as agent for MASTER. Further, as established by the proof at final hearing, the vast majority of on site spaces controlled by MASTER are leased to present tenants or their employees. Remaining unencumbered parking spaces are inadequate to meet Respondent's bid requirements. The "guarantee" by Pettus, absent her lack of authorization to act for MASTER, is further invalidated by failure of MASTER to provide acknowledgements, as required by paragraph 11 of the bid submittal form, from the existing lessees of those parking spaces controlled by MASTER which would have to be vacated in order to comply with bid requirements. The proof establishes that MASTER did not have control of a portion of the property submitted for lease consideration by Respondent, specifically the proposed parking areas. Such lack of control is nonresponsive to Respondent's bid requirements. Notably, the May 15, 1989 date of Pettus' letter coincides with the May 15, 1989 letter to MASTER from the church. Respondent's facilities service manager, involved in evaluation of the bid submittals, was understandably concerned that this letter's existence was not disclosed to Respondent's personnel prior to August 17, 1989. The position of the church as reflected in the letter caused Respondent's personnel to reevaluate the issue of whether MASTER's bid demonstrated the requisite control over the property submitted for bid consideration and concluded that such control was absent. The DSJ bid submittal contains the notarized signature of Dale S. Jones, Jr., in the space on page 16 reserved for the signature of the bidder. His signature is followed by the title "PARTNER." That term is not further described, nor is a partnership or connection of that partnership with Jones identified in the bid package. At the final hearing, Jones confirmed his signature. However, the proof fails to establish that the required initials on each page of the DSJ bid package are those of Jones. Jones was unacquainted with the bid package submitted on his behalf, having merely looked through the package before affixing his signature. Further, the bid submittal form, on page 16, has a blank space for insertion of the name of the bidder submitting the bid package. The bid package submitted on behalf of DSJ contains no name in this portion of the submittal form. Page 16 of the bid submittal form also requires that the bidder indicate the name of the entity in whose name the subsequent lease is to be written, if that entity is one other than the bidder. The bid, signed by Jones and submitted by Taylor on behalf of DSJ, contains the statement that any future lease resulting from the bid should be titled in the name of "DSJ REALTY COMPANY as managing and Leasing Agent for Crystal Lake 301 and 302 Joint Venture." Also attached to the DSJ bid submittal package is a copy of an instrument entitled "DEED TO TRUSTEE UNDER TRUST AGREEMENT." By terms of that instrument, the fee simple title to the property and appurtenances of the site of the building proposed to be leased by DSJ, was purportedly conveyed to Dale S. Jones, Jr., as "Trustee under Land Trust Agreement dated June 15, 1987". By terms of the deed, Jones is granted specific authority to convey, lease or otherwise exercise those rights to property which are commensurate with ownership. The grantor of the deed, dated July 7, 1987, is Florida Southern College. The bid package of DSJ contains no documentation that either Jones or DSJ is authorized to act as an agent on behalf of "Crystal Lake 301 and 302 Joint Venture." Further, the bid package of DSJ offers no explanation as to the identity of this entity. As established by Jones' testimony at hearing, the entities "Dale S. Jones, Trustee" and DSJ Realty, Inc., are not interrelated businesses. The DSJ bid submittal further contains no documentation of authority for ELIZABETHAN or Taylor to act as an agent on behalf of "Crystal Lake 301 and 302 Joint Venture." It is found that the bid submittal of DSJ is nonresponsive to the requirements of Respondent's ITB. In response to Respondent's letter rejecting the bids of Petitioners, counsel for both parties filed petitions dated September 8, 1989, protesting the decision and requesting administrative proceedings. The petition filed on behalf of DSJ, ELIZABETHAN, and Dale S. Jones, as Trustee, was entitled "PETITION FOR FORMAL HEARING AND FORMAL BID PROTEST" and alleges the submitting bidder to be ELIZABETHAN. The document, in support of the July 12, 1989 protest of the bid award to MASTER, sets forth specific grounds for that protest. Further, it is alleged in the petition that DSJ was appointed to act as the agent of Dale S. Jones, as trustee, in appointing ELIZABETHAN as his agent. It is found that these allegations, with regard to the identity of the submitting bidder, are not supported by any competent substantial proof; that Dale S. Jones, as trustee was not a submitting bidder; and that ELIZABETHAN was not a submitting bidder. Each petition filed in opposition to Respondent's August 28, 1989 rejection letter, was accompanied by a $5,000 cashier's check payable to Respondent. MASTER subsequently substituted this check with a surety bond. DSJ's July 12, 1989 protest of the bid award was not accompanied by any bond.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered finding the bids of MASTER and DSJ to be unresponsive; finding the cancellation of the award to MASTER to be justified; dismissing ELIZABETHAN and Dale S. Jones, as trustee, as petitioners in this proceeding; and rejecting all bids. DONE AND ENTERED this 14th day of November, 1989, in Tallahassee, Leon County, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of November, 1989. APPENDIX The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner Master's Proposed Findings. Petitioner MASTER's proposed findings consisted of 21 pages encompassing unnumbered paragraphs dealing with an intertwined mixture of legal conclusions, argument and proposed factual findings. Therefore, MASTER's submission cannot be treated by the Hearing Officer in this appendix on an individualized basis for each proposed finding. However, MASTER's submission has been reviewed and addressed, where possible, by the findings of fact set forth in this recommended order. Otherwise, all disputed issues of material fact have been addressed by the evidence adduced at the hearing held in this cause. Petitioner DSJ's Proposed Findings. Addressed in substance, remainder rejected as unnecessary. Rejected, unsupported by the evidence. Addressed in substance. Rejected, unnecessary to result. 7.-1I. Adopted in substance. Rejected, unsupported by the evidence. Addressed in substance. Adopted by reference. Adopted in substance. 16.-21. Not relevant inasmuch as Jones, in an individual capacity or the legal capacity of trustee or partner, was not a bidder. 22.-23. Adopted in substance. Rejected, legal conclusion, relevancy. Addressed in substance. 26 Rejected, not supported by the evidence. Taylor was authorized to act on behalf of DSJ Realty, Inc., by the corporate president. 27.-28. Rejected, not supported by the evidence; no evidence that Jones was a bidder. 29.-32. Rejected as unnecessary in view of result. 33.-42. Adopted in substance. Respondent's Proposed Findings. 1-12. Adopted in substance. COPIES FURNISHED: Jack E. Farley, Esq. Department of Health and Rehabilitative Services 4000 West Buffalo Avenue 5th Floor, Room 500 Tampa, FL 33614 Gregory L. Coler Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 John Miller, Esq. General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Sam Power Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Bruce Marger, Esq. 1700 66th Street, North Suite 501 St. Petersburg, FL 33710 David H. Simmons, Esq. 120 South Orange Avenue P.O. Box 67 Orlando, FL 32602 =================================================================
The Issue The issue in this case is whether the Respondent, the Department of Transportation (DOT), arbitrarily refused to accept the low bid submitted by the Petitioner, Quinn Construction, Inc. (Quinn), and Bay Machine, Inc., for State Project No. 15200-3902.
Findings Of Fact On or about December 7, 1994, the Petitioner, Quinn Construction, Inc. (Quinn), submitted a $1,695,534.84 bid on behalf of Quinn and Bay Machine, Inc., in response to a November, 1994, Department of Transportation (DOT) solicitation for bids on State Project No. 15200-3902. State Project No. 15200-3902 was essentially the same project for which the DOT previously solicited bids on or about July 1, 1994. The earlier solicitation for bids was cancelled when all bids were rejected, and the bid solicitation process was reinitiated. All bidders were required to furnish a bid guaranty, and the parties stipulate that any bid not accompanied by a bid guaranty would be declared nonresponsive. Attached to the Quinn/Bay Machine bid was a Bid or Proposal Bond on DOT Form 375-020-09. There was only one bridge rehabilitation project for Pinellas County among the projects for which the DOT was opening bids on December 7, 1994, and the bid bond was attached to the bid proposal of Quinn and Bay Machine for State Project No. 15200-3902. Utilizing the DOT form, the Quinn bid bond described the proposal being bonded as being "for constructing or otherwise improving a road(s) and/or bridge(s) or building(s) in Pinellas County; particularly known as Bayway 7918 Bridge Rehab." The part of the form calling for identification of the "Project No." was left blank. The bid bond was executed by James M. Moore as attorney- in-fact for North American Specialty Insurance Company. In addition to calling for the "Project No." in DOT Bid or Proposal Bond Form 375-020-09, the DOT routinely furnishes all bidders a Bidder's Checklist which reminds bidders to use the form and to identify the project on the form by county, by the federal aid number(s), if applicable, and by the State Project Job Number. Although the Bidder's Checklist was not in the bid package received by Quinn in connection with the November, 1994, solicitation for bids, Quinn received a Bidder's Checklist for the July, 1994, solicitation for bids on the same project and for many other previous bid solicitations. In prior bid proposal submissions, including the bid proposal submitted for the same project in August, 1994, Quinn had its surety use the "Project No." to identify the project on the bid bond. The attorney-in-fact for the bond company testified that the number 7918 on the bond was a typographical error. He testified that he thought 798 was the number that was supposed to be on the bond to identify the project. The WPI No. for the project was 7116982. The applicable State Road number was 679. The applicable bridge number was 150049. Although DOT Bid or Proposal Bond on DOT Form 375-020-09 called for identification of the "Project No.," DOT would have accepted a bid bond that identified the project by any of these numbers or by the official name of the bridge, if any. The bridge in question has no official name. It was not even proven that the bridge is commonly known as the Bayway 7918 Bridge, or even as the Bayway Bridge. The bridge in question is part of the Pinellas Bayway, which is a system of roads, causeways and bridges connecting St. Petersburg and St. Petersburg Beach and several small keys in Boca Ciega Bay. There are two state roads on the Pinellas Bayway: State Road 682, which connects State Road 699 to the west on St. Petersburg Beach to Interstate 275 to the east in St. Petersburg; and State Road 679, which intersects State Road 682 and runs south through Tierra Verde into Fort DeSoto Park on Mullet Key. Both 682 and 679 have combination fixed-span and bascule (draw) bridges. The bridge in question is on 679. When the DOT opened the bid of Quinn and Bay Machine, the incorrect identification of the project on the bid bond was noticed, and the question was referred to the Technical Review Committee. During its meeting on December 21, 1994, the Technical Review Committee sought the advice of its legal counsel and was advised that the bond probably would not be enforceable due to the inaccurate identification of the project to which it pertained. Based in part on the advice of counsel, the Technical Review Committee voted unanimously to recommend to the DOT Contract Awards Committee that the bid proposal be rejected as being non-responsive because of the bid bond. On December 23, 1994, the Contract Awards Committee met and voted unanimously to reject the bid proposal as being non-responsive because of the bid bond. Instead, the Committee accepted the bid proposal of M & J Construction Company of Pinellas County, Inc. (M & J). It was not arbitrary for the DOT to conclude that the Quinn bid bond was, or might well have been, unenforceable due to the inaccurate identification of the project to which it pertained. The DOT did not even consider whether the Quinn bid bond also may have been invalid and unenforceable because it named just Quinn as the principal, instead of both Quinn and Bay Machine, the actual entity that was prequalified to bid on the project and the actual entity bidding on the project. It also was not arbitrary for the DOT to conclude that submitting an unenforceable bid bond is not a minor irregularity. If a successful bidder does not enter into a contract, the project would be delayed while it is being rebid. The delay itself would result in a monetary loss. In addition, rebidding the project would result in additional costs to the DOT. Submitting an unenforceable bid bond could give a bidder the competitive advantage of feeling able to escape from having to contract and perform in accordance with a low bid, if advantageous to the bidder, without being liable under the bid bond.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Transportation enter a final order dismissing the Petitioner's bid protest and awarding State Project No. 15200-3902 to M & J Construction Company of Pinellas County, Inc. RECOMMENDED this 26th day of April, 1995, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of April, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-0564BID To comply with the requirements of Section 120.59(2), Fla. Stat. (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. (It appears that the Petitioner's proposed findings of fact are found at pages 2-5 of its Proposed Findings of Fact and Conclusions of Law. For purposes of these rulings, the unnumbered paragraphs on those pages are assigned consecutive numbers.) Rejected in part. (Joint Exhibit 2 refers to State Road 679, not the project, as having the "Local Name: Pinellas Bayway." Joint Exhibit 5 also only refers to State Road 679, not the project, by the name "Pinellas Bayway." Only the front covers of the technical specs refer to the "Pinellas Bayway Bridge." The other pages refer to the "Pinellas Bayway," and all of the pages also include the State Project Number.) Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. First sentence, accepted and incorporated to the extent not subordinate or unnecessary. Second and last sentences, rejected as not proven. Rejected in part as argument and in part as not proven. Last sentence accepted, but ambiguous and not legally significant, subordinate and unnecessary, whether DOT could "tie" the bid bond to the bid. Penultimate sentence, rejected in part as not proven (that Exhibit 4 "identified the project as the Pinellas Bayway"); otherwise, accepted and incorporated to the extent not subordinate or unnecessary. The rest is accepted and incorporated to the extent not subordinate or unnecessary. First sentence, rejected as not proven. (The evidence was clear that the DOT form requires a state project number and that the Bidder's Checklist provided to bidders by the DOT reminds bidders to use the form and identify the project by county, federal aid number(s), if applicable, and State Project Job Number.) Second sentence, subordinate and cumulative. Rejected as conclusion of law. Last sentence rejected as not proven that North American identified the project or that it used the local name of the bridge. The rest is rejected as not proven because the evidence was clear that the DOT form requires a state project number and that the Bidder's Checklist provided to bidders by the DOT reminds bidders to use the form and identify the project by county, federal aid number(s), if applicable, and State Project Job Number.) Accepted but subordinate and unnecessary. Rejected as not proven that DOT was arbitrary. The rest is subordinate, in part cumulative and in part argument. Subordinate, cumulative and argument. Rejected in part as conclusion of law, in part as argument and in part as not proven. Respondent's and Intervenor's Proposed Findings of Fact. All of the DOT's and the Intervenor's proposed findings of fact are accepted and are incorporated to the extent not subordinate or unnecessary or argument. COPIES FURNISHED: Suzanne Quinn, Esquire 1321 77th Street East Palmetto, Florida 34221 Thomas H. Duffy, Esquire Department of Transportation 605 Suwannee Street Tallahassee, Florida 32399-0450 Joseph G. Thresher, Esquire One Mack Center 501 E. Kennedy Bouelvard, Suite 725 Tampa, Florida 33602 Ben G. Watts Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Thornton J. Williams, Esquire General Counsel Department of Transportation 562 Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450
The Issue Whether the Florida Fish and Wildlife Conservation Commission’s (“Respondent” or “FWC”) determination that Tallahassee Corporate Center, LLC (“Petitioner” or “TCC”), submitted a nonresponsive reply to FWC’s Invitation to Negotiate (“ITN”) No. 770-0235 is contrary to the Commission’s governing statutes, the agency’s rules or policies, or the solicitation specifications; and, if so, whether it was clearly erroneous, contrary to competition, arbitrary, or capricious.
Findings Of Fact The following Findings of Fact are based on exhibits admitted into evidence, testimony offered by witnesses, and admitted facts set forth in the pre-hearing stipulation. ITN No. 770-0235 and Background FWC is a state agency that seeks office space to be occupied by personnel from six of FWC’s divisions. FWC currently leases office space from TCC, which expires in October 2019. On July 19, 2017, FWC issued ITN No. 770-0235, seeking vendors that could provide 53,000 square feet of office space for lease. FWC anticipates occupying the space by November 1, 2019. Between August 15, 2017, and November 2, 2017, FWC issued four addenda to the ITN, which contained amendments, modifications, and explanations to the ITN. There were no bidders that challenged the terms, conditions, or specifications contained in the ITN or its amendments. TCC and NLH were two of the potential lessors that submitted replies in response to the ITN. FWC seeks to lease either a building that already exists or a non-existing building to be constructed in the future. The ITN describes the proposals requested as follows: Competitive proposals may be submitted for consideration under this Invitation to Negotiate (ITN) for the lease of office space in either an existing building or a non- existing (build-to-suit/turnkey) building. NOTE: All buildings must comply with the Americans with Disabilities Act (ADA) as stated in Attachment A, Agency Specifications, Section 6.D., page 32. OPTION 1 - an ‘existing’ building: To be considered an ‘existing’ building, the facility offered must be enclosed with a roof system and exterior walls must be in place at the time of the submittal of the Reply. OPTION 2 - a ‘non-existing’ building: Offeror agrees to construct a building as a ‘build-to-suit’ (turnkey) for lease to FWC. Each applicant that submitted a proposal in response to the ITN was required to meet the specification in Attachment A of the ITN. The ITN provides as follows: FWC is seeking detailed and competitive proposals to provide built-out office facilities and related infrastructure for the occupancy by FWC. As relates to any space that is required to be built-out pursuant to this Invitation to Negotiate in accordance with this Invitation to Negotiate, see Attachment ‘A’ which includes the FWC Specifications detailing the build-out requirements. The specifications in Attachment A provided the basic requirements for the potential leased space such that proposals offering existing or non-existing building may be compared and evaluated together. The ITN included certain provisions to clarify the rights contemplated by the ITN, and included the following disclaimer: This ITN is an invitation to negotiate and is for discussion purposes only. It is not an offer, contract or agreement of any kind. Neither FWC nor the Offeror/Lessor shall have any legal rights or obligations whatsoever between them and neither shall take any action or fail to take any action in reliance upon any part of these discussions until the proposed transaction and a definitive written lease agreement is approved in writing by FWC. This ITN shall not be considered an offer to lease. The terms of any transaction, if consummated, shall not be final nor binding on either party until a Lease Agreement is executed by all parties. This ITN may be modified or withdrawn by FWC at any time. The ITN also included a provision expressly reserving FWC’s “right to negotiate with all responsive and responsible Offerors, serially or concurrently, to determine the best-suited solution.” The term “Offeror” was defined by the ITN to mean “the individual submitting a Reply to this Invitation to Negotiate, such person being the owner of the proposed facility or an individual duly authorized to bind the owner of the facility.” This reservation of rights placed interested lessors on notice that only responsive lessors could be invited to negotiations. While TCC and NLH were two of the potential lessors that submitted replies in response to the ITN, the bidders submitted different proposals. TCC submitted a proposal for an existing building, and NLH submitted a proposal for a non- existing building. During an initial review of all replies, FWC determined TCC’s reply to be nonresponsive based on TCC’s response to ITN section IV.G (Tenant Improvements) and a statement titled “Additional Response” that TCC submitted with its reply. As a result, FWC did not evaluate or score TCC’s reply. After TCC’s reply was declared nonresponsive, there were no further negotiations with TCC regarding the ITN. NLH’s reply passed the initial responsiveness review and was then evaluated and scored by FWC. FWC ultimately issued an intended award of the contract to NLH after conducting negotiations. Tenant-Improvement Cap The ITN prohibited vendors from proposing conditional or contingent lease rates that included a tenant-improvement cap, or allowance. A tenant-improvement cap reflects the maximum amount the landlord is willing to spend to make improvements to leased space. Mr. Hakimi asserted that the tenant-improvement cap would be an incentive to FWC to enter a lease. However, the tenant-improvement cap would also place a limit on improvements. According to ITN section IV.E, any reply offering a lease rate with a tenant-improvement cap would be deemed nonresponsive: FULL SERVICE (GROSS) RENTAL RATE The Offeror shall provide FWC with a Full Service (gross) lease structure. Therefore, the lease rate must include base rent, taxes, all operating expenses (including, but not limited to, janitorial services and supplies, utilities, water, insurance, interior and exterior maintenance, recycling services, garbage disposal, pest control, security system installation and maintenance, and any amortization of required tenant improvements to the proposed space). There shall be no pass through of additional expenses . . . . Offerors must provide their best, firm lease rates. Lease rates that are contingent, involve a basic rate plus “cap” or “range” for such things as tenant improvements will be deemed nonresponsive. The ITN also provided, in section IV.G, that any current lessor must meet all ITN requirements, including those set forth in ITN Attachment A: TENANT IMPROVEMENTS The State requires a “turn-key” build-out by the Landlord. Therefore, Offeror shall assume all cost risks associated with delivery in accordance with the required specifications detailed in this ITN, including Attachment A (see pages 28-45). Additionally, replies for space which is currently under lease with, or occupancy by, the Florida Fish and Wildlife Conservation Commission does not exclude the Offeror from meeting the requirements specified in this ITN document. Offeror agrees to provide “turn-key” build-out/improvements in accordance with the specifications detailed in this ITN. (use an X to mark one of the following): YES or NO TCC responded “NO” to the statement “Offeror agrees to provide ‘turn-key’ build-out/improvements in accordance with the specifications detailed in this ITN.” Additional Response Not only did TCC include a barred tenant-improvement cap, but TCC also attached an addendum to its proposal, which provided the following: The reality is that as the current Landlord, it would be impossible to ask FFWCC to move out of its existing office space in order to meet the requested Agency Specifications in Attachment A. If this condition makes our response to the Invitation to Negotiate (ITN) “non-responsive”, we stand willing to continue further negotiations with FFWCC. There was no provision in the ITN for additional responses outside what was requested in the ITN. More importantly, the addendum indicated TCC could not comply with the ITN, unless certain conditions were met. Mr. Hakimi confirmed the effect of what was written in the addendum when he testified that TCC is unable to meet Attachment A’s specifications because it presently has a tenant in place (i.e., FWC) that prevents it from constructing the building improvements necessary to comply with ITN Attachment A. Proof of Ownership of Property The ITN also provided that to be responsive, each lessor was required to submit certain documentation demonstrating the lessor’s control of the property proposed for the leased space: Replies must completely and accurately respond to all requested information, including the following: (A) Control of Property (Applicable for Replies for Existing and/or Non- Existing Buildings). For a Reply to be responsive, it must be submitted by one of the entities listed below, and the proposal must include supporting documentation proving control of the property proposed. This requirement applies to: The real property (land); The proposed building(s) (or structure(s); The proposed parking area(s). Control of parking includes the area(s) of ingress and egress to both the real property and the building(s). The owner of record of the facility(s) and parking area(s) – Submit a copy of the deed(s) evidencing clear title to the property proposed. The authorized agent, broker or legal representative of the owner(s) – Submit a copy of the Special Power of Attorney authorizing submission of the proposal. The Special Power of Attorney form was attached to the ITN as Attachment K. TCC’s certification was executed by TCC president, Lyda Hakimi. However, TCC did not execute Attachment K or include an executed power of attorney to demonstrate that TCC has control of the property. The evidence offered at hearing of the property’s ownership contained in TCC’s reply was a deed showing DRA CRT Tallahassee Center, LLC to be the property owner. Respondent argued that although TCC owns DRA CRT Tallahassee Center, LLC, the two are different legal entities. Because these were two different legal entities, TCC was required to provide a copy of Attachment K to its response to be deemed responsive. Broker Commission The ITN required lessors to agree to execute a broker- commission agreement, which was attached to the ITN as Attachment J: Offeror understands FWC is utilizing the services of a Tenant Broker representative for this lease space requirement and the successful Offeror shall execute a Commission Agreement, in coordination with FWC’s Tenant Broker representative, within fifteen (15) business days of notification of Award. Offeror agrees and acknowledges that a Tenant Broker Commission Agreement is a requirement and the successful Offeror shall be required to execute a Commission Agreement as described above. (use an X to mark one of the following): YES or NO The ITN included a schedule for the commission rate based on the total aggregate gross base rent that could be paid ranging from 2.50 percent to 3.50 percent. TCC conditioned its reply by agreeing to pay a two-percent broker commission, which is inconsistent with the commission schedule. By offering a lower commission rate, TCC could save money. TCC would then have a competitive advantage over other bidders. TCC’S Bid was Nonresponsive Based upon the foregoing, TCC’s bid submission added a tenant-improvement cap, failed to comply with the broker commission rate, failed to provide supporting documents to demonstrate proof of property ownership, and added additional conditions regarding compliance with the ITN requirements. The information requested and terms of the ITN were required for TCC’s bid to be responsive. TCC did not file a challenge to the specifications or any of the requirements of the ITN. It is now too late for such a challenge. TCC’s inclusion of a tenant-improvement allowance limits the amount that would pay for improvements. The lower broker commission increases the profit advantage for TCC more than for other bidders, which would be an unfair advantage over other bidders. TCC’s failure to comply with the terms of the ITN and failure to provide the required attachment to show proof of ownership were not minor irregularities, which FWC could waive. Therefore, FWC properly determined that TCC’s bid submission was nonresponsive. Standing TCC submitted a bid proposal that did not conform to the requirements of the ITN and it seeks relief that includes setting aside FWC’s rejection of its proposal. Therefore, TCC has standing to bring this protest. If it is determined that TCC was nonresponsive, NLH has standing to the extent the procurement process could be deemed contrary to competition.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Florida Fish and Wildlife Conservation Commission enter a final order dismissing Tallahassee Corporate Center, LLC’s Petition. DONE AND ENTERED this 27th day of March, 2018, in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN 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 27th day of March, 2018.
