Findings Of Fact Facts based on stipulation These proceedings concern Petitioner's Bid Protest in connection with that certain project known as Chiller Installation, Glades Campus, Project NO. 9237, PBCC No. 6812. Petitioner has taken all steps necessary to perfect its bid protest in a timely manner and has standing to bring this bid protest. Petitioner and Respondent met and were unsuccessful in an attempt to resolve the bid protest as required by Section 120.53(5), Florida Statutes. M. K. Mechanical, Inc., a Florida corporation, is a State of Florida Certified Mechanical Contractor and as such was a "Qualified Bidder." The original specifications for the subject project contained few electrical specifications and were silent as to how an electrical contractor was to be licensed. The bid was due on Tuesday, January 12, 1993, at 2:00 p.m. On Friday, January 8, 1993, at 3:42 p.m., via facsimile transmission, M. K. Mechanical, Inc., received supplementary electrical specifications, thirty (30) pages in length. Contained in these supplementary specifications, for the first time, was a requirement that the electrical subcontractor had to be "locally" licensed. M. K. Mechanical, Inc.'s, primary place of business is in Edgewater, Volusia County, Florida. M. K. Mechanical, Inc.'s, submitted bid was proper in all respects other than an electrical subcontractor's name was not given, instead "to be determined" was inserted. M. K. Mechanical, Inc., submitted the lowest bid. Electrical subcontractor is a "major" subcontractor on this project. The sole basis for the decision by Respondent that Petitioner's bid was "non-responsive" was the failure to list an electrical subcontractor. Additional facts regarding bid specifications The bid specifications include the requirement that bidders list all "major subcontractors" and that the category of "major subcontractors" includes electrical subcontractors. Section 5.2.1 of the Contract Documents within the Bid Specifications provides as follows: Unless otherwise required by the Contract Documents or the Bidding Documents the Contractor at the bid opening shall furnish to the Owner and Architect Form 00420, a written list of the major Subcontractors; Site Utilities, Structural Concrete, Masonry, Structural Steel & Steel Joists, Plumbing, HVAC, Electrical and Roofing, who he proposes to use on this work.
Recommendation On the basis of all the foregoing, it is RECOMMENDED that Palm Beach Community College enter a Final Order in this case denying the protest of the Petitioner, M. K. Mechanical, Inc., and awarding the contract in Project No. 9237, PBCC No. 6812 to the Intervenor, Hill York Corporation. DONE AND ENTERED this 15th day of July, 1993, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH 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 15th day of July, 1993. COPIES FURNISHED: Sid C. Peterson, Jr., Esquire DeLoach & Peterson, P.A. Post Office Box 428 New Smyrna Beach, Florida 33170 James M. Adams, Esquire Gibson & Adams, P.A. Post Office Box 1629 West Palm Beach, Florida 33402 Herbert L. Dell, President Hill York Corporation Post Office Box 350155 Fort Lauderdale, Florida 33335 The District Board of Trustees Palm Beach Community College 4200 Congress Avenue Administration Building Lake Worth, Florida 33461 Attention: Mr. Dick Jones
The Issue The issues to be considered in the course of this Recommended Order concern the question of whether Baxter's Asphalt & Concrete, Inc. or White Construction Company, Inc. should be accepted as a successful bidder on State Project No. 53050-3514, Jackson County, Florida, as advertised by the State of Florida, Department of Transportation.
Findings Of Fact The State of Florida, Department of Transportation, (DOT), advertised for bids on State Project No. 53050-3514, Jackson County, Florida. This was a project in which DOT had determined that 10 percent of the funding within the State Department of Transportation Trust Fund, as allotted for the project, would be devoted to economically disadvantaged individuals, also referred to as Disadvantaged Business Enterprises (DBE). This decision was in keeping with Section 339.081, Florida Statutes. Consequently, interested bidders were called upon to submit bids reflecting a DBE participation of a minimum of 10 percent of the bid submitted. Baxter's Asphalt & Concrete, Inc. (Baxter) and White Construction Company, Inc. (White) responded to the bid opportunity. The bids were opened on July 25, 1984, and Baxter's bid was the apparent low bid. The bid amount was $882,641.25. White was the second low bidder offering a bid of $928,353. Both bids were within the DOT estimate of construction costs. When the bids were reviewed, Baxter's bid was rejected by DOT based upon the belief that the bid failed to meet the DBE 10 percent requirement or to offer explanation of good faith attempts by Baxter to comply with the DBE contract requirement amount. See Section 14-78.03(2)(b)4., Florida Administrative Code. No other claim of error was made by DOT on the subject of the acceptability of the Baxter bid. The White bid is conforming. In preparing the bid, bidders are required to use DBE Utilization Form No. 1 to reflect the amount of DBE participation as a percentage of the overall bid estimate. In submitting its form as part of its bid blank, Baxter indicated that the total project cost was $884,000, and indicated that Ozark Striping, a DBE subcontractor, would be given $20,000 of that work or 3 percent, and that Glenn Powell, DBE subcontractor, would be afforded 7 percent of the total contract in the amount of $55,000. The total percentage according to Baxter is 10 percent, thus meeting the required DBE participation. This form is found as part of the joint Exhibit No. 1 offered by the parties. In fact, the Ozark Striping participation was 2.26 percent, and the Glenn Powell participation was 6.22 percent, for a total of 8.48 percent of the estimate reflected in the Form No. 1. Contrasted against the actual estimate of $882,641.25, these projections constitute 8.49 percent of that estimate. Thus, they are less than the 10 percent required. Given the fact that this DBE projection is less than the 10 percent, and in the absence of any attempt to offer a good faith explanation why Baxter failed to comply with the requirement, the bid was rejected for this irregularity. The Contract Awards Committee of DOT, when confronted with the irregularity of the Baxter bid, then determined to recommend the rejection of all bids. This was in keeping with the fact that the difference between the unsuccessful apparent low bid, with irregularities, and the second low bid exceeded 1 percent of the contract amount. At the time of this decision to reject all bids, DOT felt that the difference would justify re-advertising the bids. That policy position had been abandoned at the point of final hearing in this cause, wherein DOT expressed the opinion that it would be better served to accept the bid of White, and not re-advertise, again for cost reasons. In the face of the initial action to reject all bids and in accordance with Section 120.53, Florida Statutes, Baxter and White appealed that decision and by that appeal requested recognition as a successful bidder. This led to the present Section 120.57(1), Florida Statutes hearing. Baxter has never attempted to offer a good faith explanation of its non-compliance. It chooses to proceed on the theory that the mistake in computation can be rectified by allowing Baxter to submit a supplemental Form No. 1, bringing its total above the DBE requirement. In its contention, Baxter indicates that Glenn Powell could have provided $126,000 of the DBE goal, which is in excess of the 10 percent requirement. Baxter also alludes to the fact that it had contacted other DBE enterprises, such as Oglesby and Hogg, Michael Grassing, and J.E. Hill. All told, Baxter indicates that if given the opportunity, it would allow $146,000 of DBE participation to include $126,000 by Glenn Powell, and $20,000 by Ozark. This comment is suspect, given the lack of compliance in the initial bid response, and the realization that within that bid response on the item related to Glenn Powell, the original amount of work attributed to Glenn Powell was $100,000, and was struck through in favor of the $55,000, leaving a fair inference that Baxter was attempting to meet the DBE goal with a projection as close to the 10 percent as could be achieved. They fell short because in adding the $20,000 for Ozark, and the $55,000 for Glenn Powell, the addition in the Form No. 1 showed $85,000, which is more than 10 percent of the $884,000 shown on the form, when in fact the two amounts were $75,000, and less than the 10 percent required. Baxter characterizes its mistake in computation as a technical error, which can be remedied without harm to the bid process. The Baxter position must be examined in the context of action by DOT relating to compliance with DBE requirements. Prior to June 1984, a time before the subject July 25, 1984 bid opening, bidders had been allowed to amend the Form No. 1 to show compliance with the DBE requirements or demonstrate good faith efforts of compliance. That amendment as to compliance through listing of the DBE subcontractors or submission of good faith effort documentation had to be offered within 10 days per former Section 14-78.03, Florida Administrative Code. Beginning with the June 1984 bid-lettings, all documentation had to be submitted with the bid, reflecting compliance or describing good faith efforts at compliance per Section 14-78.03(2)(b), Florida Administrative Code, effective May 1984. This change was brought about to prevent the apparent low bidder, as indicated at the point of bid-letting, from shopping the quotations by the DBE's found in its original quote against other quotes from DBE's not listed in the bid documents initially submitted, and by amendment to the DBE statement prejudicing the former DBE group. The change was also made to avoid the possibility that the apparent low bidder could evade his bid by rendering it non-conforming, in the sense of refusing to submit the required documentation of compliance with DBE requirements or to the offer of a good faith explanation of non-compliance after the bid-letting. The change of May 1984, removed the possibility of bid shopping and bid avoidance. Both versions of Section 14-78.03, Florida Administrative Code, pre and post May 1984, indicate that failure to satisfy the DBE requirements or offer a showing of a good faith attempt at compliance, would result in the contractor's bid being deemed non-responsive, and cause its rejection. Baxter has been able to comply with the DBE goals of DOT in its bidding prior to the present controversy.
The Issue Whether a bid dispute arising in connection with an emergency bid letting is an appropriate subject for formal administrative proceedings, in the absence of an administrative challenge to the fact of the emergency?
Findings Of Fact The parties stipulated that DOT had "received [Baxter's] notices of protest dated September 23, 1983, October 14, 1983, and December 16, 1983, protesting the Department of Transportation's determination that Baxter's Asphalt was not the lowest responsible bidder on this project and petitioning for formal administrative hearings." Baxter's bid was indeed the apparent low bid on Job No. 53030-3511, but DOT has taken the position that Baxter is not a responsible bidder, and has disregarded Baxter's bid on that account. The DOT has moved beyond proposed action and has actually awarded the contract to Gulf, the second low bidder. The parties stipulated: Pursuant to Section 120.53(5)(c) , Florida Statutes, the Department has decided to proceed with the award and execution of the contract with Gulf Asphalt Corporation in order to avoid what the Department perceived as an immediate and serious danger to the public health, safety, or welfare. DOT executed the contract with Gulf on January 6, 1984. As grounds for executing the contract, notwithstanding the pendency of formal administrative proceedings, the Secretary of the DOT stated: ...The conversion of this two lane roadway to a four lane facility is badly needed to increase the traffic capacity and improve the safety of the highway for the traveling public. This section of roadway has a structural rating of 35 which places it in the "Critical" range . . . [and] has an accident ratio of 1.244 which is almost 25 percent above the average rate. dditional funds were appropriated by the Florida Legislature so that work could proceed without delay. It is also imperative that these projects proceed in an orderly fashion to maximize the effective use of [DOT] construction in spection and supervisory personnel. Letter from Secretary Pappas to Baxter, December 23, 1983. Baxter does not concede that an emergency exists with respect to Job No. 53030- 3511, but did concede that the existence of an emergency was for the agency head to determine, subject only to judicial review. In its petition for formal administrative proceedings, Baxter did not raise the question whether an emergency exists. For purposes of the present administrative proceeding, there is no dispute or issue as to the existence of the emergency.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That respondent dismiss petitioner's formal written protest as moot. DONE and ENTERED this 9th day of February, 1984, in Tallahassee, Florida. ROBERT T. BENTON II Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of February, 1984. COPIES FURNISHED: Frank A. Baker, Esquire Roberts and Baker P. O. Box 854 Marianna, Florida 32446 Robert I. Scanlan, Esquire Department of Transportation Haydon Burns Building, MS-58 Tallahassee, Florida 32301 Paul A. Pappas, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301
The Issue Whether the School Board of Seminole County's, notice of intent to award Bid No. 102589, for air filter maintenance, service, and replacement to Filter Service and Installation Corporation was clearly erroneous, contrary to competition, arbitrary, or capricious.
Findings Of Fact The Seminole County School District is a political subdivision of the State of Florida, created by Article IX, Section 4, Florida Constitution. The powers and duties of the school board are enumerated in Chapter 230, Florida Statutes. The Superintendent of the Seminole County School District is a constitutional officer, whose office is created by Article IX, Section 5, Florida Constitution. The powers and duties of the Superintendent are enumerated in Chapter 230, Florida Statutes. The Seminole County School Board issued a call for bids for air filter maintenance service and replacement under Bid No. 102589 on September 14, 1998. Bids were submitted by Con-Air Industries, Inc., the protester, and Filter Service & Installation Corp., the apparent low bidder. The bids were opened on September 28, 1998, and were evaluated. Each bidder was determined to be a responsible bidder to the CFB. Intervenor submitted the lowest numerical bid. On October 1, 1998, Respondent's staff recommended that the CFB be awarded to Intervenor. The decision to recommend the award of the filter service Bid No. 102589 complies with the bid specifications. The instructions to bidders, as stated on the Proposal Form, direct a bidder to total lines A-C and to enter the total at line D. The instructions state that a bidder is not to include the cost as stated at lines E & F in the total. The proposal form then states that the total cost, as stated at line D shall be used to determine the apparent low bidder. The bid proposal document stated that the total of the prices stated at items A, B, and C would be used to determine the lowest numerical bid. The bid proposal document stated that the Respondent reserves the right to negotiate unit cost proposed for item E. The line D total submitted by the Petitioner is stated at $3.45. The line D total submitted by the apparent low bidder, is stated at $2.60. Intervenor submitted the lowest numerical bid. Intervenor does business under the fictitious name Filter Sales & Service. That fictitious name has been registered with the Secretary of State for the State of Florida. Filter Service & Installation Corp., and Filter Sales & Service are one and the same. The reference by Intervenor at line F to "Per Price Sheet" and the failure of Filter Service & Installation Corp. to attach a price sheet to its proposal form is not a material deviation from the requirements of the bid specifications. The total at line D is the total used to determine the lowest bidder. Filter Service & Installation Corp. is the lowest and best bid from a responsive and responsible bidder. The Petitioner followed the procedure set forth in the bid proposal document in making a determination that the Intervenor was the lowest numerical bidder. Petitioner reserved the right to reject all bids and to waive any informalities. Petitioner failed to prove that the notice of intent to award the bid to Intervenor was clearly erroneous, contrary to competition, arbitrary, or capricious.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Respondent award the contract for filter maintenance, service, and replacement under Bid No. 102589 to the Intervenor, Filter Service and Installation Corp., as recommended by its staff. DONE AND ENTERED this 11th day of December, 1998, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 11th day of December, 1998. COPIES FURNISHED: Robert N. Hering, President Con-Air Industries, Inc. 3055 Pennington Drive Orlando, Florida 32804 Ned N. Julian, Jr., Esquire Seminole County Public Schools Legal Services Department 400 East Lake Mary Boulevard Sanford, Florida 32773-7127 Robert W. Smith, Esquire 430 North Mills Avenue, Suite 1000 Orlando, Florida 32803 Dr. Paul J. Hagerty, Superintendent Seminole County Public Schools 400 East Lake Mary Boulevard Sanford, Florida 32773-7127
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 At issue in this proceeding is whether the Department of Environmental Protection's decision to reject all bids submitted for the project entitled BDRS 52-01/02 was illegal, arbitrary, dishonest, or fraudulent.
Findings Of Fact Parties Petitioner, All America Homes of Gainesville, Inc. (All America), is a corporation doing business in the State of Florida. All America submitted a timely written bid in response to the Department's ITB and filed timely protests to the Department's actions. The Respondent, the Department of Environmental Protection, is an agency of the State of Florida which manages and operates state parks under its jurisdiction, and solicits construction projects in state parks, pursuant to Chapter 258, Part I, Florida Statutes, through its Division of Recreation and Parks, Bureau of Design and Recreation Services. The ITB In November, 2001, the Department issued an ITB on a construction project entitled Hillsborough River State Park Concession Building, project number BDRS 52-01/02. The ITB included the Bid Specifications for the project. Bids were required to be submitted no later than 3:30 p.m. on Tuesday, December 18, 2001, at the Bureau's Tallahassee, Florida, office. The written Specifications define several terms, including, but not limited, to the following: ADDENDUM: A written explanation, interpretation, change, correction, addition, deletion, or modification, affecting the contract documents, including drawings and specifications issued by the OWNER [Department] and distributed to the prospective Bidders prior to the bid opening. ALTERNATE BID: Separate optional bid item for more or less project requirement used for tailoring project to available funding. Also may consist of alternate construction techniques. BASE BID: Formal bid exclusive of any alternate bids. BID FORM: The official form on which the OWNER requires formal bids to be prepared and submitted. ORAL STATEMENTS: Verbal instruction. NOTE: No oral statement of any person, whomever shall in any manner or degree modify or otherwise affect the provisions of the contract documents.[1] SEALED BID: The formal written offer of the Bidder for the proposed work when submitted on the prescribed bid form, properly signed and guaranteed. The Bid Specifications also contained the following relevant sections: Alternatives If the OWNER wishes to learn the relative or additional construction cost of an alternative method of construction, an alternative use of type of material or an increase or decrease in scope of the project, these items will be defined as alternates and will be specifically indicated and referenced to the drawings and specifications. Alternates will be listed in the bid form in such a manner that the Bidder shall be able to clearly indicate what sums he will add to (or deduct from) his Base Bid. The OWNER will judge for himself that such alternates are of comparable character and quality to the specified items. The Order of the alternate may be selected by the Department in any sequence so long as such acceptance out of order does not alter the designation of the low bidder. ADDENDA If the Consultant[2] finds it would be expedient to supplement, modify or interpret any portion of the bidding documents during the bidding period, such procedure will be accomplished by the issuance of written Addenda to the bidding documents which will be delivered or mailed by the OWNER'S Contracts section to all bidders who have requested bidding documents. Interpretation No interpretation of the meaning of the drawings, specifications or other bidding documents and no correction of any apparent ambiguity, inconsistency or error therein will be made to any Bidder orally. Every request for such interpretation or correction should be in writing, addressed to the Consultant. All such interpretations and supplemental instructions will be in the form of written Addenda to the bidding documents. Only the interpretation or correction so given by the Consultant in writing and approved by the OWNER shall be binding, and prospective Bidders are advised that no other source is authorized to give information concerning, or to explain or interpret, the bidding documents. B-16 Bid Modification Bid modification will be accepted from Bidders, if addressed as indicated in Advertisement for Bids and if received prior to the opening of bids. No bid modification will be accepted after the close of bidding has been announced. Modifications will only be accepted if addressed in written or printed form submitted with the bid in sealed envelopes. Telegrams, facsimiles, separate sealed envelopes, written on printed modifications on the outside of the sealed envelopes will not be accepted. All bid modifications must be signed by an authorized representative of the Bidder. Modification will be read by the OWNER at the opening of formal bids. B-21 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 bid of a bidder who the OWNER determines is not in a position to perform the work. B-23 Award of Bid . . .The qualified Bidder submitting the lowest bid will be that Bidder who has submitted the lowest base bid plus any selected alternates. . . . The OWNER reserves the right to waive any minor irregularities in bids received when such waiver is in the interest of the OWNER. The Award of Bid will be issued by the OWNER only with responsible Bidders, found to meet all requirements for Award of Bid, 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 Agreement. (Emphasis in original, except for Section B-10.) The Bid Form is included with the Specifications and provides in part: Base Bid: Furnish labor, equipment, Lump Sum $ supervision and material to construct a new concession building of 2940 square feet located at the Hillsborough River State Park along with the alteration of the existing concession building according to plans and specifications. Alternate #1: Furnish labor, equipment, Add Amt.$__ supervision and material to renovate the existing concession building according to plans and specifications. There is a separate section for "Allowances," i.e., Section 01210, for the Hillsborough State Park. This section provides in part: SECTION 01210 – ALLOWANCES * * * 1.2 SUMMARY This Section includes administrative and procedural requirements governing allowances. Certain materials and equipment are specified in the Contract Documents and are defined by this [sic] specifications as material and labor to be provided against a pre-determined allowance. Allowances have been established in lieu of additional requirements and to defer selection of actual materials and equipment to a later date when additional information is available for evaluation. If necessary, additional requirements will be issued by Change Order. * * * 3.3 SCHEDULE OF ALLOWANCES A. Allowance #1: Include in the base bid an allowance for the purchase and installation of. . . kitchen equipment. . . . The total dollar amount of the allowance to be included shall be $12,000.00. There is also a separate section for "Alternates," i.e., section 01230, for Hillsborough River State Park, which provides in part: SECTION 01230 – ALTERNATES * * * 1.3 DEFINITIONS Alternate: An amount proposed by bidders and stated on the Bid Form for certain work defined in the Bidding Requirements that may be added to or deducted from the Base Bid amount if OWNER decides to accept a corresponding change either in the amount of construction to be completed or in the products, materials, equipment, systems, or installation methods described in the Contract Documents. The cost or credit for each alternate is the net addition to or deduction from the Contract Sum to incorporate alternate into the Work. No other adjustments are made to the Contract Sum. . . . . 3.1 SCHEDULE OF ALTERNATES A. Alternate No. 1: Renovate the existing concession building in its entirety as shown in the drawings and specified herein. (emphasis added.) At this stage of the bidding documents, the contractor/bidder is requested to provide a Base Bid/Lump Sum on the Bid Form to "[f]urnish labor, equipment,. . .to construct a new concession building," and to provide an additional and separate amount for Alternate No. 1 to "[f]urnish labor, equipment, . . . to renovate the existing concession building." On December 13, 2001, the Bureau issued "Addendum No. One (1)" (written by the architect) to the ITB on the "Hillsborough River State Park – Concession Building." The Addendum contained the following relevant sections: Specification Section 01210: Allowances Add the following new paragraph 3.3.B: ”Allowance #2: Include in the base bid an allowance for the renovations of the existing concession building; renovations shall be defined by the Owner. The total dollar amount of the allowance to be included shall be $25,000." Specification Section 01230: Alternates Modify paragraph 3.1.A. as follows: "Alternate No. 1: Renovate the existing concession building as defined by the Owner, and as provided for under Section 01210, Allowances." (emphasis added.) Each contractor was required to sign the Addendum and attach it to the bid. By definition, and pertinent here, an addendum is an additional written instruction to a contractor during the bidding process. Based on the weight of the evidence, the purpose of this Addendum was to require the contractor to include a $25,000.00 Allowance (for Allowance # 2) in the Base Bid, for the work which might be performed if the Department requested the work to be performed for Alternate No. 1, i.e., for the renovation of the existing concession building.3 (The Department's architect decided it would cost approximately $25,000.00 to renovate the existing concession building, hence Allowance # 2.) In other words, the Addendum does not have a specific dollar amount to be included for Alternate No. 1. Rather, the $25,000.00 is an Allowance for the work described as Alternate No. 1, but the amount is to be included in the Base Bid and not as a separate line item, dollar amount. But, importantly, the Addendum did not delete the potential work to be performed as described in Alternate No. 1, although Mr. Bowman and others believed that the Addendum deleted Alternate No. 1. It deleted the necessity to place a specific dollar amount on the Bid Form for Alternate No. 1. (Mr. Bowman is a registered Professional Engineer and a licensed contractor. He has worked for the Department for 15 years and has served as Bureau Chief for two years. He supervises the contract section and the design section, which was responsible for preparing the technical plans and specifications and bidding out the job.) Mr. Bowman offered the following explanation why he believed the Addendum was confusing: Okay. I think the confusion that was created, you know, I think the addendum in itself, you know, said add $25,000 to the base bid, but then on the bid form, it still had the space down there for alternate number one, which alternate number one, which alternate number one had become $25,000 that was to be allowed for the concession building, and I think that's where the confusion came in because I think they were still confused, that they weren't really sure that they should not put that 25 down there but they knew they had been told in the addendum to do it and I think that's the reason for the notes and we got to the correspondence on the bid form, was they wanted to make sure that that's what we were wanting to do. And I think that's where the confusion came in. Like I said, it's always, if you could go back and do it again, it would be much wiser just to issue a whole new bid form and then we wouldn't be here today. But, we didn't do that. Okay. So, that's why we are here. The language in this Addendum, when read with the original Bid Specifications, apparently caused confusion with some of the bidders on the project. Several bidders called Marvin Allen (an architect and project manager for the Department's Bureau of Design and Recreation Services) prior to the submission of the bids, to clarify how the $25,000.00 Allowance should be shown on the Bid Form. (Mr. Allen did not author any of the specifications, including the Addendum.) He was listed as a contact person. He did not contact any bidders. But, Mr. Allen recalled telling each bidder who asked that the Allowance of $25,000.00 should be included in the Base Bid. But, he does not recall the names or numbers of the bidders who called, "possibly" three, four or five. Mr. Allen believed the Addendum was clear. According to Mr. Allen, the bidders who called him found the Addendum confusing. The oral responses to the bidders can be construed as interpretations of the Addendum. However, pursuant to Section B- 10 of the Specifications, any such interpretations were required to "be in the form of written Addenda to the bidding documents." Also, any such questions should have been in writing. If Section B-10 were complied with, all bidders would have been potentially on the same footing, or, at the very least, would have had access to a written clarifying document. Opening of the Bids On December 18, 2001, the bids were opened by Mike Renard, Contracts Manager with the Bureau of Design and Recreation Services, and Susan Maynard, Administrative Assistant. Mr. Dwight Fitzpatrick, a representative of All America, also attended the bid opening. The Bid Form submitted by Nelco showed a Base Bid of $355,478.00 (Lump Sum $355,478.00), and also showed an amount of $25,000.00 on the Alternate # 1 line (Add Amt. $25,000.00). See Finding of Fact 6. (It was clear to Mr. Renard that the $25,000.00 should have been included on Nelco's Base Bid. But Mr. Renard believed that Nelco submitted a responsive bid because the Department only accepted the Base Bid. Mr. Bowman agreed.) Nelco was the only one of five bidders to have a dollar amount in the Alternate #1 line under "Add Amt. $ ." All America submitted the second lowest Base Bid of $362,000.00. There was also a hand-written note on the All- America Bid Form that stated: "Addenda # 1 instruction to place $25,000 allowance in both Base Bid and as alternate # 1." Another hand written note was located below the "Add Amt. $-0-" line: "amount added in Base Bid with $25,000 allowance per Marvin Allen." The Department considered All America's bid responsive. It is a fair inference that three out of five of the other Bid Forms contained language indicating that the bidders were relying on Addendum No. One by placing the $25,000.00 Allowance in the Base Bid.4 It is uncertain whether they did so in light of the instructions of Mr. Allen concerning how to complete the Bids Forms. However, given the nature of the calls to Mr. Allen, there is a reasonable inference that there was some confusion among some of the bidders. The Department determined that Nelco submitted the lowest Base Bid, but the Department's staff had a question as to whether Nelco had included the $25,000.00 in its Base Bid. After conferring with his superiors, Mr. Renard was instructed to call Nelco to make certain that its Base Bid included the Allowance amount ($25,000.00). Mr. Renard spoke with Steve Cleveland, Nelco's Project Manager, "to verify the fact that [Nelco] had the allowance in their base bid." Mr. Cleveland orally confirmed that Nelco's Base Bid included the $25,000.00 Allowance. Mr. Renard asked Mr. Cleveland to send him a letter verifying this statement. Mr. Renard viewed this inquiry as a request for clarification or verification, not an opportunity for Nelco to modify its bid. Mr. Bowman agreed. (Mr. Renard did not believe Addendum No. 1 was confusing.) In a letter dated December 20, 2001, Mr. Cleveland confirmed that Nelco’s Base Bid of $355,478.00 included the Allowance amount and that Nelco could still perform the contract if the $25,000 Allowance was removed from its Base Bid pursuant to the ITB, i.e., that Nelco would perform the contract for $355,478.00 less $25,000.00, or $330,478.00, if the Department did not accept Alternate # 1 and the Allowance. (An alternate does not have to be accepted by the Department.) According to Mr. Renard, Mr. Cleveland never mentioned modifying, changing, or altering Nelco's bid. The Department only accepted the Base Bid for each bid. Mr. Renard did not consider it unusual to call a bidder or contractor to verify information to determine whether they can or cannot perform the work at the stipulated price. He considered it common to make this inquiry. Also, it was common in Mr. Bowman's experience to call a bidder to get clarification. Mr. Renard was not aware of any statute or rule which authorizes the Department to request clarification from a bidder after the bids are opened. Mr. Renard was more familiar with the bid forms than Mr. Allen. After receiving Mr. Cleveland's letter, the Department determined that Nelco submitted the lowest Base Bid and that the $25,000.00 amount that Nelco wrote on the Bid Form Alternate # 1 line, was a minor irregularity in the bid which the Department, as the Owner, could waive pursuant to the ITB. On December 20, 2001, the Department posted the Tabulation of Bids showing the anticipated award of the contract to Nelco. At the hearing, an unsigned letter on Department letterhead was introduced, which was addressed to Nelco and stated that Nelco submitted the apparent low bid. However, Mr. Renard testified that these letters are prepared routinely, but not mailed out without his signature. Mr. Renard did not recall signing the letter or ever sending out such a letter to Nelco. On December 21, 2001, the Department received a Notice of Intent to Protest letter from Allen E. Stine, the President of All America. In his letter, Mr. Stine stated that Nelco’s bid should have been rejected for failure to follow the specified format as per Addendum No. 1, or adjusted to have the $25,000.00 amount added to their Base Bid. Bid Protests All America filed a written formal bid protest on January 4, 2001. On January 9, 2001, Cindy Otero of All America, notified Mr. Renard by letter, and stated that Mr. Stine was available for a hearing regarding the bid protest. On January 28, 2002, Mr. Renard returned All America's check for the bond, stating that it was unnecessary. Mr. Stine recounted a number of unanswered telephone calls after the first protest was filed. During one conversation, Mr. Renard recalled Mr. Stine saying to him, "You can't do this, you can't do this." After receiving the first formal protest, the Department staff consulted with legal staff and reviewed the documents and bid procedures. Based on the number of questions received concerning the Addendum and the hand-written notes on several of the bid forms, Mr. Bowman, Bureau Chief, determined that the bid documents were confusing and ambiguous. (Mr. Bowman stated that this was their first bid protest in his 15 years with the Department.) Therefore, Mr. Bowman decided that it would in the best interest of the State of Florida to reject all of the bids pursuant to the Bid Specifications. Mr. Bowman felt that the ITB should be re-written in order to make it clearer and allowing all of the bidders to re-bid the project without any confusion or ambiguity. Mr. Stine stated that his "senior estimator" told him that the bid language "could be confusing." He and his "senior estimator" had a discussion about whether the Allowance should have been placed in the Base Bid or not. At the time of submission of All America's bid, Mr. Stine was clear that the Allowance should be placed in the Base Bid, especially after calling Mr. Allen. But, his senior estimator was not so clear. In order to appease him, Mr. Stine placed the hand-written note on All America’s proposal. Mr. Stine essentially, "cleaned" up his proposal. At the hearing, Mr. Bowman testified Rule 60D-5.0071, Florida Administrative Code, see Conclusion of Law 59, does not list "confusing or ambiguous bid specifications" as one of the circumstances allowing for the rejection of all bids. However, Mr. Bowman later stated during the hearing that he believed the circumstances listed in Rule 60D-5.0071 were not the only circumstances authorizing the Department to reject all bids. Mr. Bowman testified that he believed that general confusion among the bidders caused by the ambiguous ITB constituted sufficient grounds for rejecting all bids. Mr. Bowman was advised by legal counsel that rejecting all of the bids would probably result in another bid protest by Nelco, All America, or both. Thus, the Department decided to delay addressing All American’s first protest until after posting the rejection of all bids and receiving the subsequent protests, so that all of the protests could be resolved at once in an efficient and economical manner. Notwithstanding the Department's justifications for rejecting all bids and not proceeding on All America's initial protest, the record is unclear why the Department waited several months to reject all bids. On May 13, 2002, the Department posted the rejection of all bids. On May 16, 2002, the Department received a formal written protest of the rejection of all bids filed by All America. On May 17, 2002, Jerome I. Johnson, attorney for the Department, contacted Mr. Robert A. Lash, All America's counsel at the time, concerning the resolution of All America’s formal protest. (Before the final hearing, Mr. Lash, with All America's consent, withdrew as counsel for All America.) The parties agreed to suspend formal bid protest procedures until a meeting could be held between the parties in an attempt to resolve the protests. Mr. Johnson sent a letter dated May 21, 2002, to Mr. Lash confirming this conversation. On June 26, 2002, a meeting was held among the Department staff, legal staff, and Mr. Lash and Mr. Stine, representing All America. The parties were unable to resolve the protests. At the conclusion of the meeting, the parties agreed that formal protest procedures would not be implemented until Mr. Stine could confer further with his counsel. In a letter dated July 5, 2002, Mr. Lash stated that his client wished to proceed with formal protest procedures and requested an administrative hearing on the protests. Are the Specifications and Bid Documents Ambiguous and Was There Confusion? The parties stipulated that "[t]he Addendum language was confusing," notwithstanding the testimony of several witnesses that they were not confused. The Department's determination that the bid Specifications, including the Addendum, and the Bid Form, which remained unchanged after the Addendum was issued, were confusing and ambiguous, is supported by the weight of the evidence. This is particularly true regarding the Bid Form. The Addendum required the bidder to include an Allowance of $25,000.00 in the Base Bid for work described as Alternate # 1. But the Bid Form was unchanged to reflect the Addendum changes. The Bid Form retained a line for the bidder to submit an additional amount for Alternate # 1. Further, it appears that several bidders were confused, including, Mr. Stine, who spoke with Mr. Allen and requested and received clarification. Further, it is unclear whether all of the bidders, including Nelco, were aware of the oral interpretations or clarifications of the Addendum rendered to some of the bidders. Rejection of All Bids Based upon the foregoing, given the standard of review in this proceeding discussed in the Conclusions of Law, the weight of the evidence indicates that the Department's action, in rejecting all bids, was not illegal, arbitrary, dishonest, or fraudulent. The Department's staff was well-intended and made some mistakes along the way, e.g., by not changing the Bid Form, which they readily admit. But there was a rationale for rejecting all bids under the circumstances.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department issue a final order dismissing All America’s Petition to Prevent Rejection of Bids and Award Contract to Petitioner and denying All America's request for attorney’s fees and costs. DONE AND ENTERED this 24th day of September 2002, in Tallahassee, Leon County, Florida. CHARLES A. STAMPELOS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 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 September 2002.
The Issue Whether Respondent has acted acted fraudulently, arbitrarily, capriciously, illegally, or dishonestly with regard to the intended award of ITB 93/94-040- LOT/P.
Findings Of Fact By correspondence filed July 18, 1994, this bid protest was referred to the Division of Administrative Hearings from the Department of Lottery for the conduct of formal proceedings pursuant to Section 120.53(5), Florida Statutes. The formal bid protest document consists solely of a single page letter signed by Petitioner's president, C. Whitside-Curry, basically stating that the letter is to serve as Petitioner's formal written protest to Respondent's "Notice of Award - Notice of Non-Responsiveness - ITB 93/94-040-LOT/P - Invitation To Bid for Painting the Interior of the Lottery Central Building. Final hearing in the matter was scheduled for August 2, 1994, in compliance with requirements of Section 120.53(5)(e), Florida Statutes, that bid protests be set for hearing within 15 days absent stipulation of the parties waiving that statutory time frame. By motion filed July 29, 1994, counsel for Petitioner sought a continuance of the final hearing for a period of one week. Counsel had just been retained by Petitioner. As reflected in Petitioner's motion, counsel's request for a one week delay was acceptable to counsel for Respondent, provided that: the 30 day time frame governing issuance of recommended orders in bid challenge cases was not waived. that deposition of a principal of Petitioner, C. Whitside-Curry, be held on August 3, 1994 at 11:30 a.m. and that certain documents also be produced. A telephone hearing on Petitioner's continuance motion was held on August 1, 1994, to clarify the hearing officer's understanding that a one week continuance of the final hearing would not subtract a period of one week from the 30 day time frame following the final hearing within which to prepare a recommended order in the case. Thereafter the motion was granted and final hearing rescheduled, as agreed in the telephone conference, for August 9, 1994, one week after the initial hearing date. By notice filed on August 3, 1994 (transmitted to Petitioner's counsel by facsimile transmission on July 29, 1994), Respondent documented the agreed upon deposition of C. Whitside-Curry and documents to be produced. By motion filed on August 3, 1994, subsequent to Respondent's notice, Petitioner's counsel sought a further continuance of the final hearing and noticed the unavailability of Petitioner's principal, C. Whitside-Curry, for the scheduled deposition on August 3 or the final hearing scheduled for August 9, 1994. By motion filed on August 3, 1994, subsequent to Petitioner's second motion for continuance, Respondent moved for imposition of sanctions, including the dismissal of the bid protest on the basis that Petitioner had not complied with conditions agreed to by the parties as a part of the one week continuance, i.e., C. Whitside-Curry did not appear for deposition and documents were not produced. The motion further related that Respondent's notice of the deposition and request to produce documents (filed on August 3, 1994) had been transmitted, as noted above, to Petitioner's counsel by facsimile transmission on July 29, 1994. In the course of telephone conference with the parties on August 8, 1994, Petitioner's counsel agreed to payment of costs related to court reporter expense incurred by Respondent at the deposition where Petitioner's principal failed to appear. Respondent's counsel refused to consent to further continuance of the final hearing and Petitioner's request for a second continuance was denied. At final hearing, consideration was given to an Petitioner's Amended Second Motion For Continuance. The motion differed from previous motions to the extent that an attached copy of a letter dated April 21, 1994, appeared to indicate that a mediation meeting in another legal proceeding required the Petitioners' presence in Tampa, Florida, on the afternoon of August 9, 1994. No direct admissible evidence of Petitioner's inability to attend the hearing was presented. Upon denial of the amended motion for continuance, counsel for Petitioner announced that he could not go forward.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the formal bid protest filed in response to Respondent's intent to award ITB 93/94-040-LOT/P, be DISMISSED. DONE AND ENTERED this 10th day of August, 1994, 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 10th day of August, 1994. COPIES FURNISHED: Curley R. Doltie, Esquire 1103 Hays Street P.O. Box 1325 Tallahassee, Florida 32302 Louisa Warren, Esquire Department of Lottery 250 Marriot Drive Capitol Complex Tallahassee, Florida 32399-4011 Marcia Mann Secretary Department of Lottery Capitol Complex Tallahassee, Florida 32399-4002 Ken Hart General Counsel Department of Lottery Capitol Complex Tallahassee, Florida 32399-4011 NOTICE OF RIGHT TO SUBMIT EXCEPTIONS All parties have the right to submit written exceptions to this recommended order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the agency that will issue the final order in this case concerning their rules on the deadline for filing exceptions to this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case. ================================================================= DISTRICT COURT OPINION ================================================================= IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA J C & C ASSOCIATES, INC., NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND Petitioner, DISPOSITION THEREOF IF FILED vs. CASE NO. 94-3185 DOAH CASE NO. 94-3955BID DEPARTMENT OF LOTTERY, Respondent. / Opinion filed January 22, 1996. An Appeal from Order of the Department of Lottery. Curley R. Doltie, Tallahassee, for Appellant. Louisa H. Warren of Department of the Lottery, Tallahassee, for Appellee. PER CURIAM. AFFIRMED. ALLEN and KAHN, JJ., and SMITH, SENIOR JUDGE, CONCUR. MANDATE From DISTRICT COURT OF APPEAL OF FLORIDA FIRST DISTRICT To the Honorable Don W. Davis, Hearing Officer Division of Administrative Hearings WHEREAS, in that certain cause filed in this Court styled: J C & C ASSOCIATES, INC., Petitioner, vs. CASE NO. 94-3185 DOAH CASE NO. 94-3955BID DEPARTMENT OF LOTTERY, Respondent. The attached opinion was rendered on January 22, 1996. YOU ARE HEREBY COMMANDED that further proceedings be had in accordance with said opinion, the rules of this Court and the laws of the State of Florida. WITNESS the Honorable E. Earle Zehmer Chief Judge of the District Court of Appeal of Florida, First District and the Seal of said court at Tallahassee, the Capitol, on this 11th day of March, 1996. (SEAL) Jon S. Wheeler Clerk, District Court of Appeal of Florida, First District
The Issue Whether the Department acted illegally, arbitrarily, dishonestly, or fraudulently when it rejected all of the bids submitted in response to Invitation to Bid No. 97-023-OR. See Section 120.57(3), Florida Statutes (1997).
Findings Of Fact Petitioner ABS is an authorized dealer for Neopost, a manufacturer of mailing equipment. Petitioner is also a Certified Minority Business Enterprise, pursuant to Chapter 287, Florida Statutes. Prior to the subject Invitation to Bid, the Department issued a similar Invitation to Bid. That bid was initially awarded to Pitney Bowes, Inc., but Pitney Bowes, Inc., was unable to meet delivery requirements of that bid, and the Department decided to re-bid. The Department issued the subject ITB No. 97-023-OR on March 10, 1997. Pursuant to its terms, the bid opening was held on April 29, 1997. The subject ITB provides, in pertinent part, as follows: At page 3 of 11 MANDATORY REQUIREMENTS The state has established certain requirements with respect to bids to be submitted by bidders. The use of "shall", "must", or "will" (except to indicate simple futurity) in this Invitation to Bid/Request for Purchase indicates a requirement or condition from which a material deviation may not be waived by the State. The words "should", or "may" in this /Request for Purchase to Bid [sic] indicate desirable attributes or conditions, but are permissive in nature. Deviation from, or omission of, such a desirable feature, will not in itself cause rejection of a bid. (emphasis supplied) At page 6 of 11 MANUFACTURER REPRESENTATIVE Bidder must provide proof of authorized dealership for equipment specified and the beginning and ending term of authorization. (emphasis supplied) SERVICE . . . Service is to be provided direct from the manufacturer. Third party service is acceptable only if it may be demonstrated that the location that is to provide the service can demonstrate 36 months experience in servicing the model proposed. Failure to receive this certification will be sufficient cause for rejection of this bid. (emphasis supplied) The manual signature of Ms. Klusmeier on ABS's April 1997 Bid certified that the bid was in compliance with all requirements of the ITB, "including but not limited to, certification requirements." ABS is not a manufacturer of the mailing equipment it bid. In its Bid, ABS enclosed a certificate issued by the Department's Minority Business Advocacy and Assistance Office certifying that ABS was a Minority Business Enterprise (MBE) under the provisions of Chapter 287, Florida Statutes. However, ABS failed to specifically include proof of authorized dealership for the equipment specified with its bid. At all times material, the Department's MBE office had a copy of ABS' manufacturer-dealer agreement with Neopost (the manufacturer) and an ABS catalogue displaying all the Neopost bid items and stating that ABS is an authorized dealer for Neopost. However, this information was not part of the subject bid response package. Rather, it had been previously submitted by ABS to obtain MBE certification. It was not re-submitted as part of ABS' ITB response package. ABS has manufacturer's (Neopost's) authorized service centers in Florida. ABS intended that ABS and another authorized dealer would provide service in the State of Florida for the equipment it bid. However, ABS failed to include with its Bid a demonstration that either ABS or the other dealer had a minimum of 36 months' experience servicing the Neopost equipment. The November 1996 ITB had requested the same manufacturer and service information as the subject April 1997 ITB, and ABS responded in the same way to both ITB's. ABS was not ruled unresponsive in November 1996 on that basis. In April 1997, ABS also initially was treated as a responsive bidder. On May 1, 1997, the only two bids (ABS and Pitney Bowes, Inc.) were opened by one of the Department's Purchasing Specialists, Oradell Rollins. The Department posted its intent to award the bid to ABS. On May 5, 1997, Pitney Bowes, Inc., the only other bidder for the subject ITB, filed a timely Notice of Intent to Protest with the Department. Pitney Bowes, Inc., is a manufacturer and bidder which services its own products. The Department's Purchasing Office has never established a pattern of accepting an MBE Certificate in lieu of specified bid elements. The Department afforded Pitney Bowes, Inc., an informal protest procedure without notification to, or participation by, ABS. On May 16, 1997, upon request from the Department's Director of Purchasing, ABS immediately forwarded a letter to the Department from Neopost advising that ABS was an authorized Neopost dealer; that ABS and others had been certified by the manufacturer to service the mailing equipment ABS had bid for the subject ITB; and that ABS had been servicing Neopost equipment for more than 36 months. Ms. Rollins had previously requested this information just after bids were opened but had not indicated it was urgent. This type of information is not normally requested after bid opening. The Department's Purchasing Office considered waiving the missing information because its personnel had dealt satisfactorily with ABS on other contracts for a number of years, but such waiver is not the Department's usual procedure. On May 15, 1997, Pitney Bowes, Inc., timely filed with the Department its Formal Written Protest. Petitioner faults this letter's recitation that the Pitney Bowes, Inc., representative saw the alleged flaws in the ABS bid on the day that bids were opened. Petitioner proved that the Pitney Bowes, Inc., representative could not have seen ABS's bid on the day of the bid opening, but the same information could have been derived subsequently. Pitney Bowes' April 1997, Notice of Protest is not in evidence for comparison with its Formal Written Protest. No nefarious dealings or collusion necessarily flows from the foregoing findings of fact. Based upon a review of the Formal Written Protest of Pitney Bowes, Inc., and upon advice of the Department's General Counsel, the Department determined that ABS's bid on the subject 1997 ITB was, in fact, nonresponsive because, when opened, it had failed to contain "proof of authorized dealership," and also had failed to include the required "certification" on "Third Party Service." On May 22, 1997, the Department sent a letter to ABS advising ABS of the Department's decision and further advising that the Department intended to re-bid for the equipment. ABS received the Department's letter on May 27, 1997. The Department's decision to re-bid instead of to award to Pitney Bowes, Inc., was in part determined by its desire to avoid situations in which there is only one responsive bidder. It was also influenced by Departmental concerns that the Pitney Bowes, Inc., bid was much higher than the disqualified ABS bid. Departmental personnel believed that a re-bid would secure a lower cost to the Department. ABS timely filed its Notice of Intent to Protest and its Formal Written Protest. Pitney Bowes, Inc. was given notice of the referral of Petitioner's protest to the Division of Administrative Hearings and chose not to intervene. ABS established that it currently provides mailing equipment for the Department all over the State of Florida and that it coordinates service for that equipment through a Neopost network in all those locations. However, ABS did not establish that it has provided or serviced exactly the same type of equipment for the Department at each of these locations, as ABS bid in April 1997. Over time, ABS has dealt with Purchasing Specialist Oradell Rollins on these other Departmental Contracts. Prior to the subject 1997 bid opening, Mr. Bowls, ABS's "Neopost Government Specialist," had informed her that ABS covered the State of Florida for Neopost. Ms. Rollins had received an ABS catalogue and ABS's MBE Certificate in connection with ongoing business prior to the April 1997 bid opening. ABS does not perceive that ABS using other dealers certified by the manufacturer (Neopost) constitutes ABS using "Third Party" service agents, nor does ABS consider itself to be a "Third Party," as that term is used in the subject ITB. However, the Department has consistently interpreted "Third Parties" to include any dealers who are not simultaneously manufacturers and bidders, and its ITBs require bidders who are not also manufacturers to demonstrate within their Bid that each service location is certified and has 36 months' experience at the time of bid opening.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Labor and Employment Security enter a Final Order dismissing the protest of American Business Systems and establishing a time frame in which its Invitation to Bid may be relet. RECOMMENDED this 24th day of September, 1997, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax FILING (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 24th day of September, 1997. COPIES FURNISHED: Linda Klusmeier, Qualified Representative American Business Systems 8638 Phillips Highway, Room 12 Jacksonville, Florida 32256 Edward A. Dion, General Counsel Department of Labor and Employment Security 2012 Capital Circle, South East 307 Hartman Building Tallahassee, Florida 32399-2189 Douglas L. Jamerson, Secretary Department of Labor and Employment Security 2012 Capital Circle, South East 303 Hartman Building Tallahassee, Florida 32399-2152
The Issue The issues in this bid protest proceeding are whether the bid of Professional Leasing & Development Corporation on state project, job number 48020-3543, was properly rejected for failure to prequalify to bid on the project; and whether the Department properly rejected the bid failure to: meet disadvantaged business enterprise ("DBE") requirements in soliciting minority subcontractors to work on the project, or make a good faith effort to meet the DBE goals set for this project?
Findings Of Fact Professional Leasing & Development Corporation ("Professional") filed a bid on state project, job number 4802 0-3543, which was opened on January 22, 1986 for work on an intersection in Escambia County. The only other bidder was Edward M. Chadbourne, Inc., which the Department declared the lowest responsible bidder, and which declined to participate in these proceedings after notice. The parties stipulated at the hearing that the bids submitted by both bidders were in due form and were submitted in a timely fashion. The parties also stipulated that the Department posted its bid tabulation on March 3, 1986, designating Chadbourne as the lowest responsible bidder, and a timely protest was filed by Professional following that posting. This job is the first Department of Transportation job on which Professional has submitted a bid. It had not prequalified to bid on the job. Warnings appear on pages one and seven of the bid blank that if the bid amount is greater than $150,000, the contractor must be prequalified. The bid blank clearly states in large print on page 7 that if the contractor is not prequalified and the bid is in excess of $150,000, the bid will be rejected. The bid package submitted by Professional was for a total contract amount of $149,973.68. This amount contained errors in the prices for certain items in the bid. These resulted from Professional's errors in the extension of the unit price for items 300 1 3, tack coat; 5331 2, type s asphaltic concrete; and 5337 1 5, asphaltic concrete friction course. The errors are small, aggregating $76.32. The total amount of the bid, as corrected by the unit prices given by Professional in its bid blank, is $150,050. The bid was rejected by the Department for failure to prequalify. When preparing its bid, Professional made efforts to meet the DBE goal set by the Department of Transportation of 8 percent of the contract amount. It sought bids from two minority businesses for striping, and for guardrail and paved ditches,the second of which was a bid from a women's business enterprise which is not considered in meeting the DBE goal. Additional efforts might have been made to obtain DBE subcontract bids by the other principal in the corporation, William Stubstad, but the testimony at the final hearing did not indicate what those efforts may have been. Neither are they reflected in the bid documents. On the DBE/WBE utilization form number 1 submitted with the bid, Professional listed eight potential subcontractors; the striping subcontractor had been certified by the Department of Transportation as a DBE. Written by hand at the bottom of the form was the statement "no other local DBEs in area." Professional's bid reflected only a 3.2 percent utilization of DBE subcontractors, while the goal set by the Department was 8 percent of the contract amount. Based on this submittal, the Department found inadequate documentation of a good faith effort to meet the DBE goal and rejected the bid. Many other subcontractors are certified as DBEs by the Department for work such as signs, guardrails, landscaping and paved ditches. Professional's bid documents give no evidence that these other firms had been solicited to submit bids.
Recommendation It is recommended that the protest of Professional Leasing and Development Corporation be rejected, and the contract be awarded to Edward M. Chadbourne, Inc. DONE AND ORDERED this 2nd day of April 1986 in Tallahassee, Leon County, Florida. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of April, 1986. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 86-0788BID The following constitute my specific rulings pursuant to Section 120.59(2), Florida Statutes (1985) on the proposed findings of fact submitted by the parties. Rulings on Proposed Findings of Fact Submitted by Petitioner: No proposed findings of fact were submitted. Rulings on Proposed Findings of Fact Submitted by Respondent: Covered in Findings of Fact 1 and 5. First sentence is covered in Findings of Fact 3 and 5; the remainder of the proposed finding is covered in Conclusion of Law 1. Generally covered in Finding of Fact 4. The portion of the proposal dealing with Standard Specifi- cation 2-1, 1986 Edition, is rejected because that section was not placed in evidence at the hearing, nor was leave requested to file that specification after the hearing. Covered in Finding of Fact 5. Covered generally in Conclusions of Law 2 and 3. Covered in Conclusion of Law 6. Rejected on the grounds that Section 2-5.3.2 of the Supplemental Special Provision of the Bid Specifications was not proven at the final hearing, nor was leave requested to file them as an exhibit after the hearing. Covered in Finding of Fact 7. Covered in Finding of Fact 7. The portion of proposal 10 found on page 4 is covered in Finding of Fact 7; the remainder is rejected as cumulative. Covered in Finding of Fact 7. Rejected because there is no evidence in the record concerning the consistency with which the Department requires full compliance with DBE goals, and because no issue was raised in this proceeding by Professional with respect to inconsistency in Department policy, making the finding irrelevant. COPIES FURNISHED: Thomas E. Drawdy Secretary Department of Transportation Hayden Burns Building Tallahassee, Florida 32301 A. J. Spalla, Esquire General Counsel Department of Transportation Hayden Burns Building Tallahassee, Florida 32301 Larry D. Scott, Esquire Department of Transportation Hayden Burns Building Tallahassee, Florida 32301 Harold Pridgen President Professional Leasing & Development Corp. 25 East Nine Mile Road Pensacola, Florida 32514 Edward M. Chadbourne, Inc. 4375 McCoy Drive Pensacola, Florida 32503
Findings Of Fact Respondent advertised for bids for work to be performed on the Statewide Regional Juvenile Detention Center located in Pasco County identified as Project Number HRS 85-300000. In response to this advertisements Petitioner and Intervenor timely submitted bids on January 23, 1966. According to calculations performed by Respondent, Petitioner was low bidder and Intervenor was the next lowest bidder. The construction budget for this job is $1.5 million, and both bids are considered by Respondent to be within budget. Depending on the alternatives chosen within each bid, Petitioner's bid is lower than Intervenor's by between approximately $6,000 and $40,000. Section B-14 of the advertisement for bids requires each bidder to submit a list of the subcontractors who will perform work on the job for him and specifies that only one subcontractor shall be listed for each phase of the work. Section D of the advertisement for bids specifies the work areas for which a subcontractor must be listed and states that said list is an integral part of each bid submitted. The subcontracting areas include electrical plumbing, mechanical, roofing security control systems, food service equipment and fire protection. Petitioner's bid was rejected on February 4, 1986, because its bid failed to include a roofing subcontractor's name as required in the advertisement for bids. Petitioner does not dispute that its bid was incomplete when submitted since it failed to identify a roofing subcontractor. However, Petitioner contends this omission was a result of clerical error in typing the bide and that, in fact, it had selected Republic Roofing as its subcontractor. John Breen, Petitioner's project manager, testified that it was his intent to use Republic Roofing when he submitted the bide that he had a firm bid from Republic Roofing, and that when this omission was brought to his attention after bids were opened, he identified Republic Roofing in writing on January 24 and 29, 1986, to Brian Seufert an intern architect working for Respondent's project architect. Seufert confirms Breen's testimony through affidavit jointly filed by the parties. Seufert indicates that the project architect has no reason to believe that Petitioner could not perform the work required by the project. By affidavit jointly filed by the parties, Joyce Kleja secretary for Petitioners also supports Breen's testimony about her clerical error in omitting the roofing subcontractor when she typed the bid. Ray Scerbo, an estimator for Republic Roofing, disputes the testimony of Breen through jointly filed affidavit. Scerbo indicates it was not until a couple of days after the bid opening that he was told by Petitioner that Republic Roofing "had the job" if Petitioner was awarded the contract. This conflicts with the first written notice from Breen to Seufert dated January 24, 1986, as well as Seufert's affidavit that Petitioner told Seufert on January 24, 1986, that Republic Roofing had been selected. Scerbo is no longer employed by Republic Roofing. After considering all of the evidence, it is specifically found that Petitioner's omission of Republic Roofing from its list of subcontractors was through clerical error and that Petitioner had firmly decided to use Republic Roofing for subcontracting work prior to submission of its bid. The advertisement for bid required all subcontractors to be listed in any bid in order to allow Respondent to review prior performance and licensure of subcontractors, and also to prevent "bid shopping". Bid shopping is a practice which inflates a general contractor's bid and therefore the actual award by encouraging subcontractors to initially submit high bids to the general contractor and then negotiate a lower price with the general contractor who has received the award. The general contractor's bid remains inflated however and in this way the cost to the state is increased.
Recommendation Based upon the foregoing it is recommended that Respondent enter a Final Order awarding Project Number HRS 85-300000 to Intervenor. DONE and ENTERED this 1st day of April 1986, at Tallahassee Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 1st day of April 1986. APPENDIX (DOAH CASE NO. 86-0495B1D) Petitioner has submitted a memorandum and a Proposed Recommended Order, both of which appear to set forth proposed findings of fact in unnumbered paragraphs. For purposes of ruling thereon, the unnumbered paragraphs which appear to set forth proposed findings have been consecutively numbered. Memorandum: Introductory material and not a proposed finding of fact. Adopted in part in Findings of Fact 1, 2, 3, 4, but otherwise rejected as cumulative and unnecessary. Adopted in Findings of Fact 5, 7. Rejected as simply a summary of testimony and evidence and not a proposed finding of fact. Rejected as irrelevant. Adopted in part in Findings of Fact 5, 6. Adopted in part in Finding of Fact 4, but rejected in part in Finding of Fact 2 and otherwise rejected as not based on competent substantial evidence. Proposed Recommended Order: Adopted in part in Findings of Fact 1, 3, but otherwise rejected as unnecessary and irrelevant. Rejected as irrelevant. Adopted in part in Finding of Fact 2, but otherwise rejected as contrary to Finding of Fact 2. Adopted in Finding of Fact 5. Adopted in Findings of Fact 5, 7. Adopted in Finding of Fact 4. Rulings on Respondent's and Intervenor's jointly filed Proposed Findings of Fact: Adopted in Findings of Fact 1, 3. Adopted in Findings of Fact 1, 2. Adopted in Findings of Fact 4, 5. Adopted in Finding of Fact 8. , 6. Adopted in Findings of Fact 6, 7. COPIES FURNISHED: Dennis R. Long Esquire 2101 U.S. Highway 19 North Suite 201 Palm Harbor, Florida 33563 Sam Powers Esquire Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee Florida 32301 William Page; Jr., Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301 John P. Fons Esquire Post Office Drawer 11307 Tallahassee, Florida 32302
