Findings Of Fact By publication in the Florida Administrative Weekly, Volume 20, Number 32, August 12, 1994, the Department of Banking and Finance (Department) gave notice of a Request for Proposals (RFP No. BF5/94-95) seeking public auction services related to the disposition of abandoned property. Timely proposals were submitted by Golden Gavel Auctioneers, Fisher Auction Company, Inc., Wayne Smith Auction Company, and Hamburg Auction Company. The RFP states that proposals will be evaluated in three phases for compliance with mandatory requirements (Phase I), quality of technical proposals (Phase II) and fee schedules (Phase III). Proposals were evaluated by three employees of the Department. The RFP provided that the criteria were weighted to permit each proposal to be numerically ranked. Each evaluator could award a score of up to 100 points according to evaluation criteria set forth in the RFP. The contract award would go to the proposal receiving the highest score from the 300 total points available. The Petitioner presented no evidence that the Phases I and II proposal evaluations were inappropriate or otherwise failed to meet the requirements of law. Phase III of the evaluation process was directed toward examination of the proposed fees to be paid to the successful bidder. As to the award of points for the fee schedule, the RFP provides as follows: For each proposal received acknowledging the services outlined in this RFP, the corresponding Fee Schedule...will be examined. All fee proposals must be expressed solely in the form of a percentage of the gross sales of property sold. A total maximum value of seventy-five (75) pts. will be awarded (out of total of 100 pts) to the lowest proposed fee percentage submitted. All other proposals will be awarded points based on the following formula Points Awarded for Fee percentage = 75 x (1 - C) C = Difference of proposal fee percentage from lowest proposal; This formula only includes valid proposals. Decimals will be rounded to the nearest whole number; .5 points will be rounded upward. The Petitioner proposed the lowest fee schedule at 9.45 percent of gross sales and, as the lowest fee proposal, received the full 75 points available for Phase III. Fisher Auction Company was the second lowest bidder, proposing a fee of 10 percent of gross sales. Application of the formula and calculation of the points awarded was completed according to the following steps: Step 1. 75 x (1 - C) Step 2. 75 x [1 - (.10 - .0945)] (Note that "C" is the difference of Fisher's 10 percent fee from Golden Gavel's 9.45) Step 3. 75 x (1 - .0055) Step 4. 75 x .9945 Step 5. 74.58 As provided in the RFP, scores were rounded to the nearest whole numbers. Fisher's point total of 74.58 was rounded to an award of 75 points for Phase III. Based on evaluation by the three Department employees, the following scores were awarded: Fisher Auction Company - 299 points Golden Gavel Auctioneers - 287 points Wayne Evan Auction Company - 284 points Hamburg Auction Company - 273 points The Department posted the results at 3:30 p.m. on September 16, 1994, proposing an award to Fisher. The Petitioner asserts that in calculating the point awards under Phase III of the evaluation process, the evaluator should use the percentage difference between the proposed fees rather than the numerical difference as was done by the Department. The result of such application would be a broader range in the points awarded under Phase III of the evaluation. The Petitioner suggests that to do otherwise is contrary to the RFP's stated intention to provide a weighted score to each proposal. There is no evidence that the Department's application of the formula is inappropriate or that the calculation of points related to fee schedules was fraudulent, arbitrary, illegal or dishonest. There is no evidence that the Petitioner questioned or objected to the formula set forth in the RFP prior to the announcement of the intended award.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Banking and Finance enter a Final Order DISMISSING the Petition filed in this case and making an award to the Intervenor. DONE and RECOMMENDED this 21st day of November, 1994, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM 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 November, 1994. APPENDIX TO CASE NO. 94-5734BID The following constitute rulings on proposed findings of facts submitted by the parties. Petitioner The Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 3, 6-10. Rejected, unnecessary. Rejected, subordinate. Rejected, the evidence does not indicate that "75 x 3" was part of the formula. Otherwise accepted as modified and included herein. Rejected, the evidence does not indicate that "75 x 3" was part of the formula. There is no evidence that the Department's application of the formula was inappropriate or contrary to the language of the RFP. Respondent and Intervenor The Respondent-Intervenor's jointly submitted proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 3, 6-10. Rejected, unnecessary. Rejected, subordinate. COPIES FURNISHED: Hon. Gerald Lewis Comptroller, State of Florida The Capitol, Plaza Level Tallahassee, Florida 32399-0350 William G. Reeves, General Counsel Department of Banking and Finance Suite 1302, The Capitol Tallahassee, Florida 32399-0350 Dale M. Vash, Esquire FOWLER, WHITE, GILLEN, BOGGS, VILLAREAL, & BANKER, P.A. 501 East Kennedy Boulevard Post Office Box 1438 Tampa, Florida 33601 Margaret S. Karniewicz, Esquire Department of Banking and Finance Suite 1302, The Capitol Tallahassee, Florida 32399-0350 Bernard T. Moyle, Esquire BENSON, MOYLE & CHAMBERS Suite 1602, One Financial Plaza Fort Lauderdale, Florida 33394-1697
The Issue Has Respondent Fancy Farms Sales, Inc. (Fancy Farms) made proper accounting to Petitioner Wayne Sullivan in accordance with Section 604.22(1), Florida Statutes, for agriculture products delivered to Fancy Farms from November 8, 1994, through December 10, 1994, by Wayne Sullivan to be handled by Fancy Farms as agent for Wayne Sullivan on a net return basis as defined in Section 604.15(4), Florida Statutes?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At all times pertinent to this proceeding, Wayne Sullivan was in the business of growing and selling "agricultural products" as that term is defined in Section 604.15(3), Florida Statutes, and was a "producer" as that term is defined in Section 604.15(5), Florida Statutes. At all times pertinent to this proceeding, Fancy Farms was licensed as a "dealer in agricultural products" as that term is defined in Section 604.15(1), Florida Statutes, as evidenced by license number 8453 issued by the Department, supported by bond number 57 92 20 in the amount of $75,000, written by Gulf Insurance Company with an inception date of September 1, 1994, and an expiration date of August 31, 1995. From November 8, 1994, through December 10, 1994 Wayne Sullivan delivered certain quantities of an agricultural product (zucchini) to Fancy Farms. It is the accounting for these zucchini (zukes) that is in dispute. It was stipulated by the parties that Fancy Farms was acting as agent in the sale of the zukes delivered to Fancy Farms for the account of Wayne Sullivan on a net return basis. There is no dispute as the quantity or size of the zukes delivered by Wayne Sullivan to Fancy Farms during the above period of time. Furthermore, there is no dispute as to the charges made by Fancy Farms for handling the zukes, including but not limited to the commission charged by Fancy Farms. The agreed upon commission was ten per cent (10 percent) of the price received by Fancy Farms from its customers. There is no evidence that Fancy Farms found any problem with the quality of the zukes delivered to Fancy Farms by Wayne Sullivan during the above period of time. Upon delivering the zukes to Fancy Farms, Sullivan was given a prenumbered delivery receipt ticket (delivery ticket) showing Wayne Sullivan as Grower number 116 and containing the following additional information: (a) date and time of delivery; (b) produce number, i.e., 37 indicating fancy zukes and 38 indicating medium zukes; (c) description of the produce, i.e., zukes, fancy; (d) a lot number containing number of delivery ticket, grower number and produce number, i.e. 2074-116-37 and; (e) the number of units of zukes received by Fancy Farm. The accounting for the zukes from the following delivery receipt ticket numbers is being contested in this proceeding: (a) 2127 dated November 8, 1994, lot nos. 2127-116-37 and 2127-116-38; (b) 22145 dated November 10, 1994, lot nos. 2145-116-37 and 2145-116-38; (c) 2181 dated November 15, 1994, lot nos. 2181-116-37 and 2181-116-38; (d) 2242 dated November 29, 1994, lot nos. 2242- 116-37 and 2242-116-38; (e) 2254 dated December 1, 1994, lot nos. 2254-116-37 and 2254-116-38; (f) 2289 dated December 7, 1994, lot nos. 2289-116-37 and 2289- 116-38 and; (g) 2313 dated December 10, 1994, lot nos. 2313-116-37 and 2313-116- 38. Once Fancy Farms found a customer for the zukes, Fancy Farms prepared a prenumbered billing invoice. Additionally, a bill of lading and load sheet was prepared and attached to the invoice. The bill of lading and load sheet would have the same number as the invoice. Basically, the invoice and bill of lading contained the customer's name and address, produce number, description of produce, number of units ordered, number of units shipped and the price per unit. The load sheet contains the customer's name, produce number, description of produce, units ordered, units shipped and the lot number for the units that made up the shipment. On numerous occasions Fancy Farms made adjustments to the selling price after the price had been quoted and accepted but before the invoice was prepared. Fancy Farms did not make any written notations in its records showing the adjustments to the price or the reasons for the adjustments to the price. Salvatore Toscano testified, and I find his testimony to be credible, that this usually occurred when there was a decrease in the market price after Fancy Farms made the original quote. Therefore, in order to keep the customer, Fancy Farms made an adjustment to the price. Sullivan was never made aware of these price adjustments. In accounting for the zukes delivered by Sullivan, Fancy Farms prepared a Grower Statement which included the delivery ticket number, the date of delivery, the lot number, grower number, produce number, description of the produce, quantity (number of units), price per unit and total due. Payment for the zukes was made to Wayne Sullivan from these statements by Fancy Farms. Sometimes payment may be for only one delivery ticket while at other times payment would be for several delivery tickets for different dates. A portion of Petitioner's composite exhibit 1 is the Florida Vegetable Report (Market Report), Volume XIV, Nos. 19, 21, 23, 31, 33, 37 and 40, dated October 28, 31, 1994, November 8, 10, 15, 29, 1994, and December 7, 12, 1994, respectively. The Market Report is a federal-state publication which reports the demand (moderate), market (steady), volume (units) sold and prices paid per unit for numerous vegetables, including zucchini, on a daily basis. The prices quoted for zucchini is for 1/2 and 5/9th bushel cartons and includes palletizing. The average cost for palletizing in the industry is 65 per carton. Fancy Farms receives and sells zukes in one-half (1/2) bushel cartons. Fancy Farms does not palletize the cartons for handling at its warehouse or for shipment. On November 8, 10, 15, 1994, Sullivan delivered a combined total of 130 units of fancy zukes and a combined total 206 units of medium zukes represented by delivery receipt ticket nos. 2127, 2145 and 218l, for a combined total of fancy and medium zukes of 336 units for which Fancy Farms paid Sullivan the sum of $1,171.00 as evidenced by the Grower Statement dated November 25, 1994. Forty eight units of fancy zukes represented by lot no. 2127-116-37 was billed out by Fancy Farms to P. H. Lucks, Inc. for $5.00 per unit. Without an explanation, Fancy Farms reduced the price to $2.50 per unit. However, Fancy Farms paid Sullivan $5.00 per unit for the 48 units of fancy zukes. Five units of medium zukes represented by lot no. 2145-116-38 were not accounted for by invoice. Thirty two units of fancy zukes represented by lot no. 2181-116-37 were not accounted for by invoice. Nineteen units of medium zukes represented by lot no. 2242-116-38 were not accounted for by invoice. Where there is no invoice the price quoted in the Market Report is used to calculate the amount due Sullivan. The amount due Sullivan from the Grower Statement dated November 25, 1994, is: Lot No. 2127-116-37: $5.00 per unit x 48 units (Invoice 3814) = $ 240.00 Lot No. 2127-116-38: $3.50 per unit x 45 units (Market Report) = $ 157.50 $3.50 per unit x 35 units (Invoice 3783) = $ 122.50 Lot No. 2145-116-37: $5.00 per unit x 12 units (Invoice 3818) = $ 60.00 $5.00 per unit x 38 units (Invoice 3822) = $ 190.00 Lot No. 2145-116-38: $3.00 per unit x 13 units (Invoice 3820) = $ 39.00 $3.00 per unit x 22 units (Invoice 3822) = $ 66.00 $3.00 per unit x 5 units (Market Report) = $ 15.00 Lot No. 2l81-116-37: $8.00 per unit x 32 units (Market Report) = $ 256.00 Lot No. 2181-116-38: $3.50 per unit x 86 units (Invoice 3778) = $ 301.00 Total owed to Sullivan = $1,447.00 Less: Amount paid Sullivan = $1,171.00 Ten per cent commission = 144.70 Net due Sullivan = 131.30 On November 29, 1994, Sullivan delivered 53 units of fancy zukes and 69 units of medium zukes as represented by delivery ticket no. 2242 for a combined total of 112 units for which Sullivan was paid $472.00 by Fancy Farms as represented by the Grower Statement dated December 7, 1994. The prices of $3.25 and $3.00 as indicated by invoice nos. 3941 and 3947, respectively are not indicative of the market for fancy zukes as established by the Market Report for December 1, 1994. The Market Report established an average price of $8.00 per unit for fancy zukes. Likewise, the price of $3.00 per unit for medium zukes as indicated by invoice no. 3927 is not indicative of the market for medium zukes as established by the Market Report for December 1, 1994. The Market Report established an average price of $6.00 per unit for medium zukes. The amount due Sullivan from the Grower Statement dated December 7, 1994, is: Lot no. 2242-116-37: $8.00 per unit x 53 units (Market Report) = $ 424.00 Lot no. 2242-116-38: $6.00 per unit x 69 units (Market Report) = $ 414.00 Total owed Sullivan = $ 838.00 Less: Amount paid Sullivan = $ 472.00 Ten Percent Commission = $ 83.80 Net due Sullivan = $ 282.20 On December 1, 7, 1994, Sullivan delivered a combined total of 51 units of fancy zukes and a combined total of 87 units of medium zukes for a combined total of 138 units of fancy and medium zukes represented by delivery ticket nos. 2254 and 2289 and was paid $516.00 for these zukes by Fancy Farms as represented by the Grower Statement dated December 15, 1994. There was no invoice for lot nos. 2254-116-37 or 2254-116-38. The Market Report established a market price of $8.00 and $6.00 per unit for fancy and medium zukes, respectively. The amount due Sullivan from the Growers Statement dated December 15, 1994, is: Lot No. 2254-116-37: $8.00 per unit x 39 units (Market Report) = $ 312.00 Lot No. 2254-116-38: $6.00 per unit x 20 units (Market Report) = $ 120.00 Lot No. 2289-116-37: $6.00 per unit x 12 units (Invoice 4049) = $ 72.00 Lot No. 2289-116-38: $3.50 per unit x 67 units (Invoice 3946) = $ 234.50 Total owed Sullivan = $ 738.50 Less: Amount paid Sullivan = $ 516.00 Ten Percent Commission = $ 73.85 Net due Sullivan = $ 148.65 On December 10, 1994, Sullivan delivered 27 units of fancy zukes and 18 units of medium zukes for a combined total of 45 units as represented by delivery ticket no. 2313 and was paid $211.50 for those zukes by Fancy Farms as represented by Growers Statement dated December 23, 1994. The 18 units of medium zukes represented by lot no. 2313-116-38 are not covered by an invoice. The Market Report established a unit price of $6.00 for the fancy zukes. Invoice no. 4075 billed the fancy zukes at zero without any explanation. Fancy Farms paid Sullivan $5.50 per unit for the fancy zukes. The Market Report established a per unit price of $8.00 for the fancy zukes which is more in line with the market than is the $5.50 per unit paid by Fancy Farms. The amount due Sullivan from the Grower Statement dated December 23, 1994, is: Lot No. 2313-116-38: $6.00 per unit x 18 units (Market Report) = $ 108.00 Lot No. 2313-116-37: $8.00 per unit x 27 units (Market Report) = $ 216.00 Total owed Sullivan = $ 324.00 Less: Ten percent commission = $ 32.40 Amount received by Sullivan = $ 211.50 Net due Sullivan = $ 80.10 The net amount owed to Sullivan by Fancy Farms: From Grower Statements dated: November 25, 1994 $ 131.30 December 7, 1994 $ 282.20 December 15, 1994 $ 148.65 December 23, 1994 $ 80.10 Total owed to Sullivan $ 642.25
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Respondent Fancy Farms Sales, Inc. be ordered to pay Petitioner Wayne Sullivan the sum of $642.25. DONE AND ENTERED this 28th day of November, 1995, in Tallahassee, Florida. WILLIAM R. CAVE, 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 28th day of November, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-3015A The parties elected not to file any proposed findings of fact and conclusions of law. COPIES FURNISHED: Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard Tritschler General Counsel Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, Florida 32399-0810 Brenda Hyatt, Chief Bureau of Licensing & Bond Department of Agriculture and Consumer Services Mayo Building, Room 508 Tallahassee, Florida 32399-0800 Wayne Sullivan 49 Myrtle Bush Lane Venus, Florida 33960 James A. Crocker Qualified Representative Fancy Farms Sales, Inc. 1305 W. Dr. M. L. King, Jr., Blvd. Plant City, Florida 33564-9006 Gulf Insurance Company Legal Department 4600 Fuller Drive Irving, Texas 75038-6506
Findings Of Fact As project architect under contract to HRS, Greenleaf/Telesca Planners, Engineers, Architects, Inc. (Greenleaf) prepared a project manual (manual). The manual invited contractors to bid on a contract for construction of the forensic services building at the South Florida State Hospital in Pembroke Pines, Florida, project No. HRS-0278. The manual contained specifications for a base contract covering construction of the building itself, and for four alternate additive bids, covering various equipment and furnishings. The first alternate called for installation of mess hall tables and seats. For the first alternate, the manual specified tables and seats manufactured by Folger Adam Company, their model number 522, or "upon prior approval" the equivalent. From the floor plan it is clear that 24 tables and corresponding seats would be required. The language of the manual describing alternate No. 1 presents no particular ambiguity or difficulty. The Folger Adam Company is well known in the construction business. Harold Wayne Blackwell, petitioner's president, used the manual in preparing Blackwell's bid for the contract. Blackwell bid on the base contract and on each of the four alternates. There are seven or eight contract hardware suppliers in Dade and Broward Counties, all of whom have access to Folger Adam Company products. Folger Adam Company does not have exclusive distributors. To determine the price of the tables, Mr. Blackwell telephoned several contract hardware suppliers, including Christensen Hardware Services, Inc. (Christensen). Christensen quoted Blackwell a price of ten thousand eight hundred dollars ($10,800.00) for twenty-four sets of Folger Adam model number 522 tables and seats. Blackwell submitted a bid of eleven thousand dollars ($11,000.00) on alternate No. 1. Forsythe bid on the base bid but did not bid on alternate No. 1, because Forsythe failed to obtain a quote on the tables and seats, before preparing its bid. Richard B. Solomon, Greenleaf's project manager for the forensic services building, opened the bids on March 20, 1979. As tabulated by Greenleaf, the bids were: Base Bid Alt. No. 1 Alt. No. 2 Alt. No. 3 Alt. No. 4 M.D. Forsythe Construction Co. $375,000 $ --- $50,842 $27,220 $33,020 Porfiri Construction Co. 406,200 7,000 45,534 25,315 44,130 Wayne Blackwell and Co., Inc. 397,735 11,000 47,000 25,000 35,000 Ed Ricke & Sons, Inc. 405,000 14,900 52,000 28,300 47,650 McKee Construction Co. 407,000 --- 45,000 28,000 --- L.G.H. Construction Corp. 524,176 18,014 43,464 24,712 35,048 Creswell Construction Co. 394,000 41,000 43,000 23,000 33,000 Petitioner's exhibit No. 2. On the base bid, Forsythe was lowest, Creswell Construction Company next lowest, and Blackwell third lowest. Among contractors who bid on the base bid and all alternates, Blackwell's combined bids were lowest for the base bid plus alternate No. 1, the base bid plus alternates Nos. 1 and 2, the base bid plus alternates Nos. 1, 2 and 3, and the base bid plus alternates Nos. 1, 2, 3 and 4. Mr. Solomon was aware of two telephone calls received by Greenleaf during the time for preparation of the bids, inquiring about the price of the tables and seats. In examining the bids, he noticed that two contractors had not bid on alternate No. 1, and that the base bids as well as the bids on alternates Nos. 2, 3 and 4 were "pretty tight" as compared to the range of bids on alternate No. 1. From looking at the bids on alternate No. 1, it was hard for Mr. Solomon to tell what a reasonable price for the tables and seats was. Mr. Solomon recommended to HRS that the bids on alternate No. 1 be thrown out. Charles Robert Yates, an architect employed by HRS, concurred in Mr. Solomon's recommendation. He was under the impression that funding for the project would not be available unless the contract was let before April 1, 1979. Mr. Yates could not recall such diversity among bids in his thirty-year career, yet he had no difficulty learning what the tables and chairs cost when he called architectural firms to find out. After the bids were opened, Blackwell promptly protested Forsythe's bid. Under the heading of alternates, the manual states: If the Base Bid is within the amount of funds available to finance the construction contract and the Owner wishes to accept alternate additive bids, then contract award will be made to that responsible Bidder submitting the low combined bid, consisting of the Base Bid plus alternate additive bids (applied in the numerical order in which they are listed in the Bid Form). Petitioner's exhibit No. 1, Paragraph B-9, Alternates. HRS wrote Blackwell on April 3, 1979, denying Blackwell's protest and stating, as reasons: M.D. Forsythe Construction Co., Inc. did not ignore Alternate No. 1, but completed that section of their bid by stating "No bids received on this item." Proposals for Alternate No. 1 ran the gamut for "No Bid" to prices extending from $7,000 to $41,000. The Department holds, as concurred in by the attached letter from our consultants, that there was confusion in the marketplace regarding the intent of Alternate No. 1, as attested to by the disparity among the proposals, and therefore we choose not to consider Alternate No. 1. Provisions for this deletion include Sections B-17, B-22 and B-24 of the Contract Documents. Petitioner's exhibit No. 3. HRS then awarded the base contract and additive alternates Nos. 2 and 3 to Forsythe, and gave orders to proceed with construction on May 7, 1979. After construction began, Mr. Solomon wrote Forsythe to inquire what Forsythe would charge to install the tables and seats called for by additive alternate No. 1. Forsythe eventually agreed to do it for eleven thousand dollars ($11,000.00), after first quoting a higher price. On August 1, 1979, Greenleaf prepared a change order at HRS' behest, directing Forsythe to install the tables and seats originally called for by additive alternate No. 1, at a price of eleven thousand dollars ($11,000.00). Other provisions of the manual relied on by the parties include the following: B-17 PREPARATION AND SUBMISSION OF BIDS Each Bidder shall copy the Proposal Form on his own letterhead, indicate his bid prices thereon in proper spaces, for the entire work and for alternates on which he bids. Any erasure or other correction in the proposal may be explained or noted over the signature of the Bidder. Proposals containing any conditions, omissions, unexplained erasures, alternations, items not called for or irregularities of any kind may be rejected by the Owner. . . DISQUALIFICATION OF BIDS Any or all proposals will be rejected if there is reason to believe that collusion exists among the Bidders and no participants in such collusion will be considered in future proposals for the same work. Proposals in which the prices obviously are unbalanced will be rejected. Falsification of any entry made on the Contractor's bid proposal will be deemed a material irregularity and will be grounds, at the Owner's option, for rejection. REJECTION OF BIDS The Owner reserves the right to reject any and all bids when such rejection is in the interest of the State of Florida, and to reject the proposal of a Bidder who is not in position to perform the contract. AWARD OF CONTRACT The contract will be awarded as soon as possible to the lowest qualified Bidder provided his bid is reasonable and it is in the best interest of the Owner to accept it. The Owner reserves the right to waive any informality in bids received when such waiver is in the interest of the Owner. The lowest bidder will be determined by adding to the Base Bid such alternates, in numerical order, as available capital funds will allow. The Agreement will only be entered into with responsible contractors, found to be satisfactory by the Owner, qualified by experience, and in a financial position to do the work specified. Each Bidder shall, if so requested by the Owner, present additional evidence of his experience, qualifications, and ability to carry out the terms of the contract, including a financial statement. Petitioner's exhibit No. 1. At no time did Forsythe attempt to influence the award of the contract improperly. At the time of the final hearing, the project was approximately 95 percent complete.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That, in the future, HRS adhere to the letter of language like that contained in paragraph B-9 of the manual whenever such language is used in an invitation for bids. DONE and ENTERED this 6th day of March, 1980, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Louis L. LaFontisee, Jr., Esquire 200 South East First Street, Suite 802 Miami, Florida 33131 Leonard Helfand, Esquire 401 North West 2nd Avenue Room 1040 Miami, Florida 33128 Richard Morgentaler, Esquire 1600 North East Miami Gardens Drive North Miami Beach, Florida 33179 =================================================================
Findings Of Fact Pursuant to agreement of the parties, this case was submitted to the undersigned Hearing Officer upon the filing of briefs and proposed final orders. There are no disputed issues of material fact. The legal issue in this case is whether Rule 13A-1.002(3), Florida Administrative Code, is an invalid exercise of delegated legislative authority. The parties were represented as follows: Petitioner: Richard A. Lotspeich, Esquire Post Office Box 271 Tallahassee, Florida 32302 Respondent: Sandra E. Allen, Esquire Room 452, Larson Building Tallahassee, Florida 32399-0955 Intervenors: Charles S. Ruberg, Esquire Knott Building Tallahassee, Florida 32399 (Department of Education) Paul W. Lambert, Esquire Post Office Box 11189 Tallahassee, Florida 32302 (Microdyne Corporation) The parties' proposed final orders were filed on June 25, 1987 and a ruling on each proposed finding of fact is included in the Appendix to this Final Order.
The Issue The issues concern the question of the responsiveness of Intervenor's bid to the invitation to bid (ITB) 92-66BC. If the Intervenor is not responsive, then Petitioner asserts that it should be awarded the contract as the second ranked bidder. In particular Petitioner alleges that there are certain irregularities in the response by the Intervenor and that they constitute material deviations from the bid requirements. They are in turn: Whether Intervenor failed to submit its price on the second addendum bid sheet as required or to acknowledge that its bid was being submitted in accordance with Addendum No. 2. Whether Intervenor failed to include its references with its bid response. Whether Intervenor failed to fill in the space on the bid form calling for cash discount terms. Whether Intervenor failed to fill in the space on the bid form calling for delivery days. Whether Intervenor failed to initial changes or corrections to its price quotation.
Findings Of Fact On September 14, 1992, Respondent mailed ITB No. 92-66BC to prospective bidders. The ITB called for "A bid for supplied items related to HRS data processing operations-Florida Project." Within the ITB was given the following explanation concerning bid items and bid prices: ITEM Unit Bid NO. Quantity Description Price 1 each IBM 4234 Print Ribbon (per month) (no substitutes) $ ea. 30 each IBM 4202 Ribbon (per month) (no substitutes) $ ea. 50 each IBM 4019 Laser Toner (per month) (no substitutes) $ ea. 650 each IBM 2380/2381 Print Ribbon (per month) (no substitutes) $ ea. 5 boxes Continuous Self-adhesive (per month) Labels $ ea. (labels are blank with no printing) overall size 5 3/4" x 6" including pin feed holes, label size 5" x 17/16", white labels, 1,000 per box $ per 1 each IBM 6262 Mylar Film Ribbon (per month) (no substitutes) $ ea. 650 each IBM 6262 5 Mil. Ribbon (per month) (no substitutes) $ ea. 8 boxes IBM 3800 Toner (3/box) (per month) (no substitutes) $ ea. 1 roll IBM Splicing Tape (per month) (no substitutes) $ ea. 2 boxes IBM 3800 Developer (2/box) (per month) (no substitutes) $ ea. On September 24, 1992, Addendum No. 1 was prepared related to the items that were being bid. It stated: The purpose of this Addendum #1 to the above referenced HRS bid invitation is to: (a) Clarity the individual IBM product specifications with IBM stock numbers (b) increase the quantity for item #1, and (c) extend the bid opening date. These changes are as follows: ITEM Unit Bid NO. Quantity Description Price Increase quantity IBM 4234 Print Ribbon of IBM 4234 Print Auto-Inking Ribbon (Auto-Inking) IBM Stock #1380160 from 1 ea./mo. to "30 ea./mo.". $ ea. Same Quantity IBM 4202 Ribbon as previously IBM Stock #1040150 specified $ ea. Same Quantity IBM 4019 Laser Toner High Yield IBM Stock #1380200 $ ea. Same Quantity IBM 2380/2381 Print Ribbon IBM Stock #1040930 $ ea. Same Quantity Continuous Self-Adhesive Labels $ ea. Same Quantity IBM 6262 Mylar Film Ribbon IBM Stock #1040400 $ ea. Same Quantity IBM 6262 5 Mil. Ribbon High Contract IBM Stock #1040300 $ ea. Same Quantity IBM 3800 Toner IBM Stock #1669122 $ ea. Same Quantity IBM Splicing Tape IBM Stock #4165880 $ /cn. of 72 rolls Same Quantity IBM 3800 Developer 2/box IBM Stock #1162223 $ /box Addendum No. 1 also moved the bid opening date from September 24, 1992, until September 30, 1992. Addendum No. 2 was issued on September 28, 1992, concerning bid items. It stated: The purpose of this 2nd Addendum to the above referenced bid invitation is to incorporate the "packaging" (3 per box) on item #8 and to add/clarify the individual "units" on which "Unit Bid Prices" shall be based. These changes are as follows: ITEM Unit Bid NO. Quantity Description Price Increase quantity IBM 4234 Print Ribbon of IBM 4234 Print Auto-Inking Ribbon (Auto-Inking) IBM Stock #1380160 from 1 ea./mo. to "30 ea./mo.". $ ea. Same Quantity IBM 4202 Ribbon as previously IBM Stock #1040150 specified $ ea. Same Quantity IBM 4019 Laser Toner High Yield IBM Stock #1380200 $ ea. Same Quantity IBM 2380/2381 Print Ribbon IBM Stock #1040930 $ ea. Same Quantity Continuous Self-Adhesive Labels $ ea. Same Quantity IBM 6262 Mylar Film Ribbon IBM Stock #1040400 $ ea. Same Quantity IBM 6262 5 Mil. Ribbon High Contract IBM Stock #1040300 $ ea. Same Quantity IBM 3800 Toner IBM Stock #1669122 $ ea. Same Quantity IBM Splicing Tape IBM Stock #4165880 $ /cn. of 72 rolls Same Quantity IBM 3800 Developer 2/box IBM Stock #1162223 $ /box The second addendum changed the bid opening date to October 9, 1992. Petitioner and Intervenor received the addenda. Notwithstanding the attempts at clarification concerning the bid items, Item No. 6 continued to be problematic in that the description of the ribbon type was Mylar Film; however, the stock number shown opposite the item identified was for nylon ribbon. Respondent intended to purchase Mylar ribbon. Intervenor was made aware that the agency desired Mylar ribbon by its Item No. 6. This information was imparted before the bid opening. Although William F. Cox, Respondent's employee who was responsible for the ITB has no specific recollection of discussing the problem about Item No. 6 with a representative from Petitioner's corporation, John C. Lyons, a representative for Petitioner's corporation does recall a discussion. Lyons' understanding in conversation with Cox was that disposition would be made concerning item 6 after a winning vendor had been selected, that disposition having to do with rectification of the confusion surrounding the item description and stock number. Prior to bid opening Cox had reached as many bidders as he felt time would allow him to contact concerning the problem with Item No. 6. Time was of the essence in that the contract which Respondent had with the existing vendor who supplied the items sought by the ITB was expiring and the federal government from whom funding for this activity was being received was insisting on moving the project forward. This reason for bidding was to change from a sole source purchasing arrangement to a purchase under competitive bidding. The existing vendor was a sole source and the ITB was designed to substitute competitive bidding for that approach. Cox was unsure how he would deal with responses pertaining to Item No. One alternative was that if he had two responsive bids which included reference to Mylar ribbon that would suffice. Another option would be to throw out Item No. 6 and consider the award on the basis of the other nine items. Intervenor bid Mylar ribbon on Item No. 6 together with a number of other vendors who submitted responsive bids for Mylar ribbon on Item No. 6. Petitioner bid nylon ribbon on Item No. 6. All ten vendors who submitted responses were found responsive to the ITB. Because Intervenor had bid Mylar ribbon on Item No. 6 and other vendors had also bid Mylar ribbon on Item No. 6, Cox elected the option to leave Item No. 6 in the price quotation for determining the ranking for vendors. The decision to award the overall contract was decided on the basis of price in the aggregate for the ten items in question. Although Petitioner had bid nylon ribbon on Item No. 6, this was to the Petitioner's advantage in comparison to other vendors concerning the price competition. The reason for this finding is that nylon ribbon is a less expensive ribbon than Mylar ribbon. When the bids were opened on October 9, 1992, the basis for assessing compliance with the terms of the ITB was controlled by the terms of the ITB; Chapter 287, Florida Statutes; Chapter 13A, Florida Administrative Code, and Chapter 13A, Florida Administrative Code, as interpreted by Mr. Cox without benefit of any additional guidelines which Respondent may have established for assessing responsiveness. That approach was not irregular. The price quotations for line items within the bid blank offered by Intervenor were set out in the ITB and Addendum No. 1. Addendum No. 2 was not attached. Petitioner attached both addenda to its response and set out the prices on the addenda. Petitioner did not set out the prices on the ITB. Notwithstanding the failure to submit Addendum No. 2 with its response, Intervenor was aware of its requirements when submitting its response. While it is the ordinary expectation that Addendum No. 2 would have been submitted, this oversight does not constitute a material deviation from the requirements set out in the ITB. The basic description of the ten items that were being bid remained consistent beginning with the ITB and continuing through the addenda. An examination of the price responses by the Intervenor when compared to Petitioner's responses and those made by other vendors does not lead to the conclusion that the failure to use the blank for Addendum No. 2 compromised the Intervenor's response. This finding is made with the knowledge of the language under general conditions to the ITB referring to sealed bids where it says "all bid sheets and this form must be executed and submitted in a sealed envelope. . . . Bids not submitted on attached bid form shall be rejected. All bids are subject to the conditions specified herein. Those which do not comply with these conditions are subject to rejection." Because of what Mr. Cox perceived as possible confusion by the vendors concerning the number of attempts to clarify the terms of the items to be bid, he did not feel that a vendor should be penalized for not recording the price quotations on the addenda. This perception is acceptable. Finally, additional evidence concerning the underlying similarities between the initial invitation to bid and the addenda is borne out by the fact that both the Petitioner and Intervenor in recording the price quotations in two places in their responses were consistent in those quotations. Included within the ITB was a section entitled "Background Statement." It stated: The computer related supplies which will be purchased from this bid/contract will be used by the department's data center in Tallahassee and statewide district service centers in the timely provision of a range of critical client services. The ability of the department's statewide data processing network to deliver these services in a responsive manner is critical to the very livelihood of many of these individuals. For this reason, the department will require that responding vendors provide a minimum of three (3) company references and provide other pertinent information, as required, to substantiate that the company is capable by experience and resources, to fulfill the provisions of this contract in a timely, competent and professional manner. The requirement for providing three company references was not one which made it incumbent upon the vendor to submit the references with the response to the ITB. The ITB is silent on the use of the information concerning references, that is to say the verification of those references and how that might be achieved. The vendor is only responsible for providing the information. Respondent may then use the information in any manner it desires. Although it is the ordinary practice of the Respondent to check the references prior to posting the intent to award, nothing in the ITB makes it incumbent upon the Respondent to do so and the vendor will not be held accountable for the Respondent's failure to comply with its customary practice by not checking the references prior to the posting of the intent to award. Intervenor did not provide the references with its response to the ITB. When Cox reminded Intervenor that it had not provided the references, the references were faxed to Cox on the day that the results concerning the ITB were posted. Two of the three references were checked on the day of posting following the posting. The third reference was not available to confirm the suitability of this vendor to supply the bid items in question. Moreover, the items being bid were from a single manufacturer, IBM. The vendors who were participating in the response, including Petitioner and Intervenor, were companies who had business affiliations with IBM that allowed necessary access to the bid items being sought. In summary, there was no requirement to provide references with responses and Intervenor did supply information about its references in a timely manner and the treatment of those responses by Respondent was appropriate. Within the general conditions to the bid is language to the affect that "all corrections made by bidder to his bid price must be initialled." Intervenor in Item No. 5 found within the basic bid blank and Addendum No. 1 changed bid by obliterating information and substituting the price $3.95 per box. This was an irregularity. The manner in which the irregularity was addressed by Mr. Cox minimized its influence and caused it to be other than a material deviation from the terms of the ITB. When Mr. Cox opened the Intervenor's response and discovered this change to Item No. 5 which had not been initialled he held up the response and said, "I have a bid with a change here I want to show it." This was presented in front of other vendors who were in attendance at the bid opening. Petitioner was not in attendance. A member of Respondent's staff other than Cox also saw this display and heard the remarks. This approach demonstrated that the Respondent had not made the changes in the person of its employee and by inference verified that the change had been made by the Intervenor. The nature of the change does not leave ambiguity concerning the intention by the Intervenor in that the prior entry on Item No. 5 within the basic invitation to bid blank and Addendum No. 1 had been obliterated leaving only the price quotation in the amount of $3.95 thus this problem is a minor irregularity and not a material deviation from the terms concerning the ITB. The delivery time contemplated for providing the bid items was ten working days by shipment FOB destination. This was as announced in Paragraph Although the front page to the ITB carries with it a blank for recording the delivery date where it says "delivery date will be days after receipt of purchase order", it was not necessary for a vendor to fill that number of days in. The reason is that the number of days had already been established by the terms of the ITB and no latitude was presented to a vendor to suggest otherwise. If a vendor chose to fill in the ten days required by Paragraph 11 by placing the number ten on the lead sheet to the ITB, this was a redundant act. Likewise on the lead sheet to the ITB is found a blank for recording the "cash discount terms". Reference to cash discount terms was not a specific requirement within the ITB, especially as it relates to a comparison of responses by the vendors in deciding who would be awarded the contract. Therefore, the failure by the Intervenor to record its cash discount terms on the lead sheet to the ITB in a setting in which Petitioner had offered such information is not a deviation from the requirements set out in the ITB. Under general conditions at Paragraph 4.b. concerning discount, it is stated "cash discounts for prompt payment shall not be considered in determining the lowest net cost for bid evaluation purposes." Nothing in the remaining text found in the ITB was contrary to that statement. The price difference between the responsive bid by the Intervenor and the responsive bid by the Petitioner was $102 in a setting in which Intervenor had the lowest price and Petitioner had the second lowest price.
Recommendation Upon consideration of the findings of facts found and the conclusions of law reached, it is, recommended that a Final Order be entered which dismisses the bid protest of the Petitioner and awards the contract to Intervenor, together with costs in the amount of $764. RECOMMENDED this 14th day of January, 1993, in Tallahassee, Florida. CHARLES C. ADAMS 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 January, 1993. APPENDIX CASE NO. 92-6824BID The following discussion is given concerning the proposed facts of the parties: Petitioner's Facts Paragraphs 1 through 5 with the exception of the last subparagraph to Paragraph 5 are subordinate to facts found. The last subparagraph to Paragraph 5 is rejected as the reason for deciding that the Intervenor had complied with the requirements for references. Paragraph 6 is subordinate to facts found with the exception of the discussion related to Mr. Lyons and his understanding of what must be done in making changes through the initialling process. Mr. Lyons insights do not set aside the perception that the failure to initial by Intervenor was a minor irregularity. Paragraph 7 is subordinate to facts found. As to Paragraph 8, the fact that Mr. Cox did not make a specific determination about Item No. 6 related to the response by the Petitioner did not disadvantage the Petitioner in a way that should cause a change in the outcome. Paragraphs 9 through 11 are subordinate to facts found. Respondent's Facts Paragraphs 1 through 8 are subordinate to facts found. Paragraph 9 is not necessary to the resolution of the dispute. Paragraphs 10 through 28 are subordinate to facts found. COPIES FURNISHED: John C. Pelham, Esquire Pennington, Wilkinson & Dunlap, P.A. 3375-A Capital Circle, N.E. Tallahassee, Florida 32308 Robert L. Powell, Esquire Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301 James Cody, Jr. IT Products, Inc. 5303 East Colonial Drive Orlando, Florida 32807 John Slye, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 John C. Lyons, Senior Account Manager 321 West Exchange Street Akron, OH 44302 Associated Computer Stipulations 1801 North Meridian Road Tallahassee, FL 32303 SAI/Delta, Inc. Suite 1014 670 North Orlando Avenue Maitland, FL 32751 Best Line Office Machines, Inc. Post Office Box 37381 Pensacola, FL 32526-0381 FRC Office Products Post Office Box 10163 Jacksonville, FL 32247-0163 Matrix Data Corporation Post Office Box 36150 Cleveland, OH 44136 Center Office Products 625 West Gaines Street Tallahassee, FL 32304 Computer Solutions/Connecting Point 4405 Bayou Boulevard Pensacola, FL 32503 Forms Management, Inc. Post Office Box 4004 Tallahassee, FL 32315
The Issue As described in the parties' Prehearing Stipulation Petitioners are challenging the Respondent's (SJRWMD) solicitation process with regard to the "Invitation to submit an Offer to Purchase property known as the Zellwin Airstrip." Petitioners seek to set aside the award of purchase to Intervenors and to have the solicitation process re-advertised. The issue for resolution is whether Petitioners are entitled to that relief.
Findings Of Fact In 1996 the Florida Legislature mandated that the St. Johns River Water Management District (SJRWMD) attempt to purchase farms on the north shore of Lake Apopka as part of a long-term restoration and reclamation project. Petitioners, Rex Shepherd and Dale Harper, are pilots and owners of an aerial advertising business, American Outdoor Aerial Advertising. In early 1998 the business was operating out of Crakes field, a small airstrip owned by Kent Crakes as part of Crakes' North Lake Apopka farm. Petitioners' business owned airplanes and banners which it flew for its advertising clients such as Sears and GEICO. Sometime in early 1998 it became obvious that Petitioners would need to move their operation to another field. There were break-ins at the hanger, and the airstrip was beginning to flood as a result of the reclamation project. Kent Crakes referred Rex Shepherd to Leonard Freeman, the individual with SJRWMD who was involved with land acquisition in the area. Around March or early April 1998 Petitioners commenced discussions with Mr. Freeman regarding their use of the farm airstrip at Zellwin Farms, also part of the SJRWMD Lake Apopka farms acquisition program. Mr. Freeman was the SJRWMD point of contact for the Zellwin Farms acquisition. By early 1998, the property was already under contract and was scheduled to close some time around June 1998. Mr. Freeman and the Petitioners met at the Zellwin Farms airstrip in June 1998, and Petitioners determined the property would be suitable for their operation. Eager to accommodate Petitioners because of their predicament and also in anticipation of the SJRWMD's eventual sale of the Zellwin parcel, Mr. Freeman gave permission for Petitioners to store their equipment on the site and gave them a key. Because Zellwin Farms was beyond what SJRWMD considered to be the lake's historic shoreline, the SJRWMD knew that it would need to dispose of its 1400 acres as surplus, in whole or part. Mr. Freeman's desire was to find a way to dispose of the property as the best thing for the SJRWMD. Thus, because of the Petitioners' immediate interest in relocating their business, Mr. Freeman began negotiating with them for their purchase of the airstrip and related buildings. In September 1998, Mr. Freeman met again with Petitioners at the airstrip and discussed a specific proposal. Petitioners talked about offering $250,000 under a lease-purchase arrangement, and sent a letter dated September 10, 1998, to Mr. Freeman with that offer. Mr. Freeman later suggested that since the appraised value was $275,000, an offer in that amount would be easier to get approved. Mr. Freeman did not have the authority to obligate the SJRWMD to sell the property and Petitioners understood that. Still, Petitioners felt they were negotiating in good faith with staff who could make a strong recommendation to the board. Petitioners believed in early October that they had a hand-shake deal subject to further discussions regarding specific terms. They knew that a competitive solicitation might be an option for the SJRWMD but they also believed that they would be given an opportunity to meet another third party's offer. This belief was based not on some specific agreement for a "right of first refusal," but rather on Mr. Freeman's good-natured assurances that they would work it all out. Mr. Freeman requested that the SJRWMD special counsel develop a draft contract based on Petitioners' offer. The offer would then need to be signed by Petitioners and approved by Mr. Freeman's supervisor before going to the SJRWMD governing board. The counsel never finished the draft and it was never given to Mr. Freeman or the Petitioners. By the end of October 1998, Robert Christianson, Mr. Freeman's supervisor and director of the SJRWMD Department of Operations and Land Resources, learned that Petitioners were flying in and out of the Zellwin airstrip and using it for their business base of operations. This activity was beyond the storage permission that Mr. Freeman had granted. (Even that permission was beyond his individual authority.) Mr. Freeman and Mr. Christianson met with Petitioners on October 27, 1998, to work out a license agreement for their use of the airstrip. Such an agreement was necessary to protect the parties' respective interests and to cover the SJRWMD for any liability in the landlord/tenant relationship. The result of that meeting was a written license agreement for Petitioners to use, maintain, and provide protection for the property for a period from October 30, 1998, to April 30, 1999, subject to revocation with advance notice. Petitioners used the airstrip property under that agreement and made improvements, mostly cleaning up the facility so it could be used. At the October meeting it became obvious to Petitioners that the informal negotiations for their purchase were terminated and that the SJRWMD was going to solicit competitive offers for the purchase. This concerned the Petitioners and they felt let- down by Mr. Freeman. Still, they concentrated on getting the license agreement worked out. Rex Shepherd's account of the October meeting was that Mr. Christianson was very clear about the fact that the SJRWMD had to go for competitive bid, that they were bound by a board and rules and regulations even though both he and Mr. Freeman would like for Petitioners to have the airport, and that they should be able to work it out. At the end of the meeting, and as they were leaving the trailer, Mr. Shepherd commented to Mr. Freeman that he really did not want to lose the airport and wanted to be apprised of what was going on so that if there were a higher bid, he could have the opportunity to match it, or if it were too high, that they would have 30 or 60 days to vacate the property. According to Mr. Shepherd, Mr. Freeman simply responded, "We'll work all that out, don't worry about it." On November 11, 1998, the SJRWMD governing board voted to surplus the Zellwin Farms property with direction to the staff that the sale be widely advertised in the aviation community and not be a sole source deal. Consistent with the board's direction and pursuant to Section 373.089(3), Florida Statutes, the SJRWMD advertised a "Notice of Intention to Sell" the airstrip property in the Orlando Sentinel for three consecutive weeks, November 9, 16, and 23, 1998. The notice identifies the airstrip property as an "Approximately 47-acre agricultural airport facility, 2,200'? square feet asphalt runway, 5,250 ? square feet metal hanger, 2,048 ? storage square feet building, well and septic tank at a location of northwest Orange County, Florida, Sections 20 and 29, T-20-S, R-27-E, on Jones Avenue, 1 ? mile west of U.S. Highway 441, Zellwood." The Notice of Intention to Sell states that "[a]ll interested persons are invited to submit an offer to the District for purchase of said lands. Contact the District . . . and request an Airport Sales Package." Both the Airport Sales Package and the Notice of Intention to Sell state that the airport property will be sold for the highest price obtainable. The sales package states that full cash offers to be paid at closing will be given first consideration and that 10 percent of the purchase price must be paid when the offeror was notified that it was successful. The sales package also states that any person adversely affected by an offer solicitation shall file a Notice of Protest, in writing, prior to the date on which the offers are to be received, and shall file a formal written protest within ten (10) days after filing the Notice of protest pursuant to Florida Administrative Code Rule 40C-1.801. * * * Failure to timely file a notice of protest or failure to timely file a formal written protest shall constitute a waiver of proceedings under Chapter 120, Florida Statutes. (SJRWMD Ex. 3). Both the Notice of Intention to Sell and the sales package require that sealed "offers for purchase" be submitted to the SJRWMD prior to 2:00 p.m. on December 4, 1998, the advertised time for opening of the offers. Nothing in the Notice or sales package reserves a right of first refusal for any person. Instead, both plainly state "no offer will be accepted after the date and hour specified for submittal of offers." (SJRWMD Exhibits 1 and 3) Although Petitioners did not see the newspaper notice, they had knowledge that the SJRWMD advertised the sale of the airstrip property through a competitive solicitation process in the newspaper. They had been clearly informed of need for the competitive process by Mr. Christianson at the October meeting and they were present when a pre-solicitation meeting/inspection took place at the airstrip in November prior to the offers being accepted by the SJRWMD. Intervenors requested a sales package from the SJRWMD on November 30, 1998, and December 2, 1998. Petitioners requested and received a sales package prior to the opening of the offers to purchase. The sales packages were not available to the public until December 2, 1998, the same day Petitioners received their package. Mr. Freeman told Petitioners they needed to submit their bid. Although the sales package stated that facsimile offers would not be accepted by the SJRWMD, Leonard Freeman informed Petitioners that they could fax their Offer to Purchase. The SJRWMD did accept a facsimile offer to purchase from Petitioners on December 4, 1998, at 1:07 p.m. Offers to purchase were opened by the SJRWMD at 2:10 p.m. on December 4, 1998. Petitioners submitted an offer to purchase the airstrip property for $275,000, where Petitioners would pay $1,500.00 per month for 60 months ($90,000 with $72,000 applied toward principal) with a balance of $203,000 cash to be paid at the end of the 60-month term. Intervenors submitted an offer to purchase the airstrip property for $310,000, where Intervenors would put 10 percent down ($31,000 earnest money deposit) at award of Agreement of Purchase and Sale and the balance of $279,000 cash would be paid at closing on or before May 1, 1999. Petitioners' offer to purchase was not the highest offer; it did not provide for cash at closing; and it did not meet the requirement of 10 percent to be paid upon notification. Staff recommended to the SJRWMD board that it award the purchase of the airstrip property to the highest offeror, Intervenors. The governing board approved staff's recommendation at its regularly scheduled meeting on December 9, 1998. On December 9, 1998, Petitioners filed a Notice of Protest. On December 18, 1998, Petitioners filed a copy of their Formal Bid Protest with the SJRWMD. Petitioners never grasped the implications of the competitive solicitation process until after the offers were opened and the award was made to Intervenors. Even if Petitioners had seen the newspaper notice and had received the sales package sooner, they still would not have protested because they understood that their "agreement" was outside of the process. That is, they mistakenly perceived that after the offers were in they could negotiate further to exceed the high offer. Chagrined, and genuinely regretful of the misunderstanding, Mr. Freeman had to tell Petitioners that further negotiations were foreclosed after the offers were opened. Mr. Freeman's earlier assurances to Petitioners were the result of an excess of bonhomie rather than any deception. He wanted them to have the airport and he wanted to work out the sale of surplus property. Petitioners were aware that he did not have the authority to bind his agency to an agreement. Mr. Freeman never specifically told Petitioners they had a right of first refusal; they wanted that advantage and surmised agreement from Mr. Freeman's and Mr. Christianson's vague counsel to not worry and that it would all be worked out. The SJRWMD devised a competitive process for disposition of the Zellwin airstrip that was consistent with its statute and with the direction of its governing board. Intervenors responded with an offer that met all the published requirements. Petitioners did not, and any culpability of SJRWMD's staff for Petitioners' misunderstanding is not so egregious as to require that the process begin again. Petitioners occupied the property, used it, and made improvements to enhance their use. This, however, was in reliance on their license to use the property and not on some certainty that they would ultimately be able to own the property. As Petitioners testified at hearing, they were disappointed that the SJRWMD decided to solicit competitive proposals; they knew that it was possible someone would offer more than they could match. (Harper, Transcript pages 117-120).
Recommendation Based on the foregoing, it is RECOMMENDED: that the SJRWMD enter its final order denying Petitioners' request to reject all bids and re-advertise the sale. DONE AND ENTERED this 24th day of June, 1999, in Tallahassee, Leon County, Florida. MARY CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of June, 1999. COPIES FURNISHED: Henry Dean, Executive Director St. Johns River Water Management District Post office Box 1429 Palatka, Florida 32178-1429 John W. Williams, Esquire St. Johns River Water Management District Post Office Box 1429 Palatka, Florida 32178-1429 Clayton D. Simmons, Esquire Stenstrom, McIntosh, Colbert, Whigham And Simmons, P.A. Post Office Box 4848 Sanford, Florida 32772-4848 Stanley Dollen 1230 Kelso Boulevard Windermere, Florida 34786 Herbert Clark 5416 Trimble Park Road Mt. Dora, Florida 32757
The Issue The issue in the case is whether the allegations of the Administrative Complaint are true, and if so, what penalty should be imposed.
Findings Of Fact The Petitioner is the agency charged with regulating the pari-mutuel wagering industry in Florida, including persons licensed under Chapter 550, Florida Statutes. At all times material to this case, the Respondent was licensed as a cardroom employee occupational license number 1395921-1181, issued by the Petitioner. On May 20, 1998, the Respondent was working as a teller in the cardroom at Tampa Jai-Alai. The evidence establishes that on May 20, 1998, the Respondent provided wagering tickets to a patron of the facility without obtaining cash or a cash voucher in exchange for the tickets.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Business and Professional Regulation enter a Final Order revoking the cardroom employee license number 1395921-1181 of Bobbie J. Manning. DONE AND ENTERED this 27th day of January, 1999, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of January, 1999. COPIES FURNISHED: Susan C. Felker-Little, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0750 Bobbie J. Manning 3007 Spillers Avenue Tampa, Florida 33619 Deborah R. Miller, Director Division of Pari-Mutuel Wagering Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: At all relevant times, respondent, Passport Internationale, Inc. (Passport or respondent), was a seller of travel registered with the Department of Agriculture and Consumer Services (Department). As such, it was required to post a performance bond with the Department conditioned on the performance of contracted services. In this case, petitioner, Cecile M. Haake, has filed a claim against the bond in the amount of $398.00 alleging that Passport failed to perform on certain contracted services. On December 24, 1990, petitioner responded to a newspaper advertisement promoting a five-day, four-night cruise to the Bahamas for $199.00 per person. The advertisement was run by Travel Partners International (TPI), a telemarketeer selling travel certificates on behalf of Passport. Petitioner purchased a certificate authorizing two persons to take the cruise. For this, she paid $398.00. Shortly thereafter, petitioner received a package with a reservation request form. The form carried the name, address and telephone number of Passport. It should have contained an issue date and the name of the sponsor, but TPI erroneously left that information blank. Ordinarily, a certificate would expire one year after the issue date. Petitioner was not told this when she agreed to purchase the package. Around February 20, 1992, petitioner returned the reservation request form to Passport with a requested travel date of May 1, 1992. On February 26, 1992, Passport returned the form and advised petitioner that "your reservation form was not completed by your sponsor." She was told to have TPI complete the form, and resubmit it with her requested travel dates. By now, however, TPI had gone out of business. Petitioner accordingly filled in TPI's name in the space for the sponsor, and she inserted an issue date of March 15, 1991. This meant her certificate would expire on March 15, 1992, or less than a month later. She again returned the form to Passport. Since her requested travel dates were more than a year after the issue date, Passport declined to accept the reservation. Although in some cases Passport offered to extend certificates for an additional year for a $50.00 fee, there is no evidence that Passport did so in this case. When petitioner requested a refund of her money, Passport's successor corporation, Incentive International Travel, Inc. (Incentive), declined to issue a refund on the ground the package was purchased from TPI and not Passport, and Passport had never received any money from the telemarketeer. To date, petitioner has never received a refund of her money.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the claim of petitioner against the bond of respondent be granted in the amount of $398.00. DONE AND ENTERED this 9th day of January, 1995, in Tallahassee, Florida. DONALD R. ALEXANDER 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 9th day of January, 1995. COPIES FURNISHED: Cecile M. Haake 7254 Quail Meadow Road Charlotte, North Carolina 28210 Julie Johnson McCollum 2441 Bellevue Avenue Daytona Beach, Florida 32114 Robert G. Worley, Esquire 515 Mayo Building Tallahassee, Florida 32399-0800 Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard D. Tritschler, Esquire The Capitol, PL-10 Tallahassee, Florida 32399-0810
The Issue The issue in this case is whether J&K Enterprises of Lee County owes Petitioner money for sod.
Findings Of Fact On January 29, 1994, Petitioner invoiced Respondent J&K Enterprises for five loads of Bermuda sod that Petitioner had sold and delivered to Respondent. Pursuant to the agreed-upon price, the amount of the invoice was $3139. On February 10, 1994, Petitioner invoiced Respondent J&K Enterprises for four loads of Bermuda sod that Petitioner had sold and delivered to Respondent. Pursuant to the agreed-upon price, the amount of the invoice was $2776. On February 24, 1994, Petitioner invoiced Respondent J&K Enterprises for five loads of Bermuda sod that Petitioner had sold and delivered to Respondent. Pursuant to the agreed-upon price, the amount of the invoice was $3946. On March 3, 1994, Petitioner invoiced Respondent J&K Enterprises for one load of Bermuda sod that Petitioner had sold and delivered to Respondent. Pursuant to the agreed-upon price, the amount of the invoice was $736. On March 10, 1994, Petitioner invoiced Respondent J&K Enterprises for one load of Bermuda sod that Petitioner had sold and delivered to Respondent. Pursuant to the agreed-upon price, the amount of the invoice was $656. The total of the five invoices is $11,253. Respondent J&K Enterprises made the following payments on account: April 10, 1994--$1000; April 29, 1994--$1000; May 17, 1994--$1000; May 25, 1994--$1000; June 24, 1994-- $1000; September 23, 1994--$2000; October 21, 1994--$500; and December 15, 1994--$250. The total of the eight payments is $7750. Respondent J&K Enterprises still owes Petitioner the difference of $3,503. Despite repeated demands, Respondent refuses to pay the remaining balance. The parties agreed on the delivery tickets that Respondent J&K Enterprises would pay 18 percent on all unpaid balances after 30 days. Respondent has paid in full the first two invoices. Respondent paid all but $2111 of the third invoice, which balance began to earn interest on March 24, 1994. The fourth invoice of $736 began to earn interest on April 3, 1994, and the last invoice of $656 began to earn interest on April 10, 1994. Interest through March 1, 1995, on the February 24 invoice is $355.02 plus $1.04 per day thereafter. Interest through March 1, 1995, on the March 3 invoice is $120.38 plus $0.36 per day thereafter. Interest through March 1 on the March 10 invoice is $104.64 plus $0.32 per day thereafter.
Recommendation It is hereby RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order ordering J&K Enterprises of Lee County to pay the amount set forth above and, if said amount is not paid, ordering Preferred Mutual Insurance Company to pay said amount, up to its maximum liability on the bond. ENTERED on February 16, 1995, in Tallahassee, Florida. ROBERT E. MEALE 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 on February 16, 1995. COPIES FURNISHED: Hon. Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, FL 32399-0810 Richard Tritschler, General Counsel Department of Agriculture The Capitol, PL-10 Tallahassee, FL 32399-0810 Brenda Hyatt, Chief Bureau of Licensing and Bond Department of Agriculture 508 Mayo Building Tallahassee, FL 32399-0800 Larry Perkins Florida Sod of Hendry County, Inc. P.O. Box 159 LaBelle, FL 33935 J&K Enterprises of Lee County 2290 Bruner Lane Ft. Myers, FL 33912 Preferred Mutual Insurance Co. Legal Department P.O. Box 40-7003 Ft. Lauderdale, FL 33340-7003
