The Issue The issue addressed in this proceeding is whether Petitioner or Intervenor submitted the lowest and best bid.
Findings Of Fact On December 20, 1989, the District Board of Trustees, Okaloosa-Walton Community College, issued an Invitation to Bid (ITB) for Phase I Construction of the OWCC-WUF Joint Use Campus. The total project was estimated to cost about $5,000,000.00. The funds for the project would come in large part from the Public Education Capital Outlay Funds appropriated by the legislature and passed into law in the State's budget and to a limited extent from the college's renovation fund. Up to the time of hearing, the legislature had appropriated $3,000,000.00 for the project. The college's renovation fund contained approximately $70,000.00. The board hopes that the additional funding needed for the project (approximately $2,000,000.00) will be appropriated by the legislature this summer. However, until the additional funds are appropriated, the Board, by statute, is prohibited from contracting for projects in excess of the amount of money which has been appropriated for such projects. See Section 235.42, Florida Statutes. Michael Richardson, of Bullock-Tice Associates Architects, Inc., was the architectural project manager. Each bidder was asked to provide a base bid and a separate bid on each of ten alternatives. Eight bids were submitted in response to the original solicitation. All eight bids were rejected. The bids were rejected because all eight bids for the base bid without the addition of any alternates exceeded the funds available for the project. The Board decided to rebid the project. The second ITB was issued on March 26, 1990. The second ITB was restructured in an effort to obtain a base bid within the amount of money which had been appropriated for the project. Alternates could then be added to the base bid until the funds ran out. Specifically, the project was revised to provide for a base bid and separate bids on six alternates. The base bid essentially provided for construction of a classroom (Building No. 3) and a utility plant. Alternates 1 and 2 provided for outside civil, electrical, and landscaping work related principally to the buildings covered by the base bid. Alternates 3 and 4 related principally to the construction of two additional buildings and landscaping related to those buildings. Alternates 1-4 added work to the project. Alternates 5 and 6 deleted certain work from the project. Paragraph 1A of the Instructions to Bidders required that: To receive full consideration, all bids must be executed and submitted in strict accordance with the "INSTRUCTIONS TO BIDDERS. Paragraphs 7C and 7D of the Instructions to Bidders required that: Unit Prices: Each bidder shall state in the schedule provided on the Form of Proposal the amount he proposes for each applicable Unit Price requested. Unit price amounts shall include all costs of material, labor, equipment, insurance, bonds, taxes, overhead and profit and shall be used for determining amounts to be paid for all additional work on the project. Credits for any work omitted shall be determined by Unit Price at the amount scheduled. The Owner reserves the right to reject any Unit Price if considered excessive or unreasonable, or to accept any and all such Unit Prices which may be considered fair and reasonable. Alternates: In order that the Owner may discern an alternative use or type of material, or an increase or decrease in the scope of the Project, such items will be defined as Alternates and will be specifically described by the Drawings and/or Specifications. Alternates will be listed in the Form of Proposal in such a manner that the bidder will be able to clearly indicate the sums that will be added to or deducted from the Base Bid. Alternates shall include all costs of materials, taxes, bonds, handling, overhead, and profits and the acceptance of any alternate shall be in strict accordance with applicable Specification Sections. At some point after the initial bid instructions were sent out, and prior to the bid opening, the project architect drafted and sent to bidders a document entitled "Clarification to All Bidders." This document stated: It is the intention of the Owner to award all add Alternates upon receipt of additional funding this Summer. Due to this circumstance, the determination of Low Bidder will most likely be based upon the Base Bid plus Alternate 1 through 4 and 5 & 6 if so desired. This procedure is in accordance with rules of the Florida State Board of Education for Educational Facilities. (emphasis supplied) No bidder challenged the clarification's inclusion in the specifications for the project. Bidders generally interpreted this "Clarification" to mean that the Board of Trustees intended to award a contract for the total project, and thus would make its determination of low bid based on the total sum of the bids for base bid and alternates 1-4. However, bidders were not uniform in their application of that language to developing their specific bids and were not uniform in their interpretation of whether the Board's method of award of the bid as set out in the clarification was guaranteed by the clarification's language. In other words, some bidders realized that the use of the words "most likely" in the clarification meant exactly what it said and was not a guarantee that the project would be awarded according to the method established in the clarification. Petitioner, on the other hand, at its peril ignored the words "most likely" and altered its normal method of calculating its bid. In any event, no bidder received any advantage over another bidder due to the clarification's issuance and no bidder was favored or discriminated against because of the clarification. All bidders received the clarification and reacted to it in the normal course of their businesses and prepared their bids according to those dictates. Six bids were received on the second ITB, including Jack Moore & Company, Inc. and Sharpe, Inc. The bids on the base bid and the various alternates were as follows: CONTRACTOR BASE BID TOTAL SEE ATTACHED EXHIBIT 1 Under the method of determining low bidder set out in the clarification, Jack Moore & Company was the low bidder. However, the Petitioner's bid, as well as all other bidders' bids, exceeded the amount of money that the Board had on hand for construction of the project. Therefore, the Board of Trustees felt that it could not award the contract according to the method set out in the clarification and examined the bids to determine the amount of construction which could be accomplished for the amount of money it had on hand ($3,000,000.00 from the legislature and $70,000.00 from the renovation fund). By using only the $3,000,000.00 from the legislature, Opus South would have been the low bidder on the base bid. However, by adding approximately $25,000.00 from the renovation fund, the college had enough money to award the base bid plus alternates 1 and 2. Money for alternates 3 and 4 was not available. The Board decided to award the base bid plus alternates 1 and 2. Sharpe, Inc. was the low bidder on the base bid plus alternates 1 and 2. The Board awarded the contract to Sharpe. Petitioner was approximately $100,000 over the amount bid by Sharpe on the base bid plus alternates 1 and 2. The Board's reasoning was not arbitrary or capricious in the award of the bid to Sharpe. Since the language of the clarification was not binding on the Board, the method used by the Board was within the specifications. Finally, there was no substantial evidence of fraud or collusion on the part of the Board in its award of the bid to Sharpe and no evidence was submitted that Sharpe was not responsive to the ITB. In fact, all the bidders responded to the exact same specifications, thereby affording the Board an exact comparison between the various bids submitted to it for the project. The only difference in the bids was in how each individual bidder calculated its bid to arrive at it's price. Such differences occur in all bid situations and do not serve to lessen the exact comparison of the bids on the specifications. Therefore, Sharpe, having presented the lowest and best bid, should be awarded the contract on the base bid plus alternates 1 and 2.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Board enter a final order finding Sharpe, Inc., submitted the lowest and best bid and awarding the bid on the base bid plus alternates 1 and 2 to Sharpe, Inc. DONE and ENTERED this 13th day of July, 1990 in Tallahassee, Leon County, Florida. DIANE CLEAVINGER 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 13th day of July, 1990.
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 =================================================================
Findings Of Fact Petitioner, COOK-REIFF, is an architectural firm located in Broward County, Florida. Respondent, BOARD is the governing body for the Broward County, Florida school district. On February 17, 1977, the BOARD approved the composition of the ASC. Since that dated the ASC, composed of: The Director of School Facilities, the Director of Facility Planning and Construction, two architects, two engineers, a representative of the District Advisory Committee, a representative of the Broward County Council for the P.T.A., and one designee from the office of the Superintendent of Schools for Broward County, Florida has acted for the BOARD in performing the major portions of those functions required of the BOARD by Section 287.055, Florida Statutes. The responsibility for selection of an architectural firm and the negotiation of the fee for School Board projects has been delegated by the School Board to the ASC. On January 21, 1982, the BOARD adopted Rule 6GX6-7003. The Rule as amended on January 20, 1983, sets forth administrative procedures for selecting professional services in compliance with the Consultants' Competitive Negotiations Act, Section 287.055, Florida Statutes (Supp. 1984), and Rule 6A-2.04, Florida Administrative Code. In particular, this Rule sets forth criteria to be considered in selection of an architectural firm for BOARD projects. Prior to 1982, the ASC used Chapter 287, Florida Statutes, as it's guideline in selecting architectural firms. The procedures and criteria contained in the administrative rule were modeled after Chapter 287, Florida Statutes. From January 1982, up to and including September 30, 1985, the ASC selected various architects for contracts for school projects by following the criteria provided for in the BOARD'S Rule 6GX6-7003. From the inception of the Rule in 1982 until the October 17, 1985, meeting of the BOARD, the BOARD approved each and every recommendation of the ASC. At no time prior to October 15, 1985, did anyone including BOARD members, directly or indirectly express dissatisfaction with the criteria that were contained within Rule 6GX6-7003 or the selection process that was being used by the ASC. On May 16, 1985, the BOARD approved advertising for the selection of an architect to design the new Prototype High School. In accordance with the authorization to advertise, the BOARD, through the department known as School Facilities, notified architects of the project and sought applications. On June 14, 1985, COOK-REIFF filed its application, i.e., an answered Architectural Questionnaire, with the Director of School Facilities for consideration for the Prototype High School. The application was reviewed and evaluated by Mr. Crouch using an evaluation form developed by Mr. Pulver's office. Mr. Pulver serves as director for School Facilities for the BOARD and Mr. Crouch, who mainly acts as Mr. Pulver's assistant, is the Director for Facility planning and Construction Supervision. On September 17, 1985, the ASC, in keeping with procedure established since 1982, met to "shortlist" i.e., to reduce the field of applicants for the Prototype High School. On September 17, 1985, a short list, which included COOK-REIFF, was prepared by the ASC which reduced the field of architectural firms to eight (8). Notice was then given to each of these firms advising that they would be allowed to make a twenty (20) minute oral presentation on September 30, 1985, before the ASC. On September 30, 1984, the ASC met with seven (7) members present and interviewed each of the eight (8) architectural firms on the short list. Following the interviews, the ASC met and discussed the eight (8) applicants. Following the discussions of these applicants, the following occurred: Each of the committee members that were present, wrote their first, second and third preferences on a piece of paper. This piece of paper was then placed in the middle of the table and one of the committee persons, Ms. Pat Mason, opened each of the ballots and announced the results. As a result of this first ballots the list of eight firms was narrowed to five firms and a second vote was held in the same manner. As a result of the second vote, three architectural firms were selected in order of preference with COOK-REIFF being selected by the ASC as its first preference as the architect for the Prototype High School project. Both the meetings of September 17 and September 30th. 1985 were open to the public. The record does not reflect whether notice of these meetings was published or advertised to place the public on notice as to when the ASC would be meeting. The format of voting used by the ASC was chosen so that various members would not be influenced by how other members might vote. The voting procedure which is described above is the same procedure which the ASC had used on different occasions in the past since 1982 where voting was by ballot and not by motion from the floor. This procedure was referred to as "secret ballot" in the Minutes of the ASC. No objections to these minutes were made by any member and Mr. Crouch received no objections from the members. The BOARD was aware that this method of balloting was being used by the ASC. No members of the then constituted ASC ever objected to this manner of voting either before or after September 30, 1985. In fact, prior to October 15, 1985, no one, including BOARD members had ever objected to this process which had been in use since 1982. And, prior to November 21 or 25, 1985, no one ever advised Mr. Pulver as Chairman of the ASC, that the process might be in violation of State Law. By letter dated October 3, 1985, Mr. Crouch notified COOK-REIFF that they had been selected by ASC as its first choice as the architect for the prototype high school. Following notification that they had been selected, COOK-REIFF through Cary B. Cooke negotiated a fee for the contract with Mr. Robert Pulver the BOARD's representative. These negotiations took place over a two-day period with a resultant $706,500.00 fee. Although Mr. Crouch negotiated the feed the fee as well as the balance of contract would have to be submitted to the BOARD for approval. After the fee was negotiated, Mr. Edwin Jacquith, the Project Coordinator for the Prototype High School for the BOARD, met with Cary B. Cook of COOK-REIFF on at least three (3) occasions to discuss, among other things, a Schedule of Events. Mr. Jacquith provided Mr. Cook with various documents including aerial photographs, surveys, facility lists, specifications, Chapter 6A-2 Florida Administrative Code and a proposed Schedule of Events. Mr. Jacquith requested that Mr. Cook prepare a Schedule of Events and submit it to Mr. Jacquith. Mr. Cook prepared a Schedule of Events which was provided to Mr. Jacquith and approved. In addition, after the fee was negotiated, but prior to October 15, 1985, Mr. Cook reviewed the documents which were provided to him by Mr. Jacquith and Mr. Cook prepared certain preliminary drawings in conjunction with the Prototype High School project. The minutes of the meetings of September 17, 1985, and September 30, 1985, were first officially provided to the BOARD members as supporting documentation for the recommendation for the approval of the contract with COOK-REIFF. The aforesaid recommendation was placed on the BOARD's agenda for October 17, 1985. The BOARD met on October 15, 1985, for a conference meeting to review the agenda for the meeting on October 17, 1985. On October 17, 1985, the BOARD discussed "Item E-14--Assignment of architect--prototype high school" with regard to several members concern over the BOARD's present procedure as set out in its Rule 6GX6-7003 and voted to disapprove the Recommendation of the ASC. Although one member mentioned in passing some concern over the balloting process used by the ASC, the minutes do not reflect any further mention or discussion on this point and the balloting does not appear to be the basis for disapproval of Item E-14. The minutes do not reflect that any member of the BOARD ever contended that the ASC failed to follow the procedure adopted by the BOARD in its Rule 6GX6-7003 in January 1982 and amended in January 1983 or that the selection of COOK-REIFF was improper. The BOARD heard presentations with regard to Item E-14 by COOK-REIFF, counsel for COOK-REIFF, school administrators and by the general public. At the October 17, 1985 meeting, Mr. Robert Pulver, the BOARD'S representative, responded at length to questions from BOARD members with emphasis on how the ASC applied the criteria contained in Rule 6GX6-70O3 and was surprised that the BOARD questioned the criteria that the ASC had been following since 1982. After the vote to reject the recommendation of the ASC by the BOARD on October 12, 1985, COOK-REIFF filed a Notice of Protest and subsequently filed a formal written protest in the form of the document known as Petition To The School Board of Broward County, Florida, in accordance with Section 120.53(5)(b), Florida Statutes (Supp. 1984), as amended by Chapter 85-180, Section 77, Laws of Florida. The BOARD convened a meeting on November 21, 1985, to consider the petition of COOK-REIFF but no decision was reached on this date and the meeting was adjourned to allow counsel for the BOARD to research the matter and reconvened on November 25, 1985. It was during the meeting on November 25, 1985, that the violation of Chapter 286, Florida Statutes, commonly known as the Florida Sunshine Law, was first raised. The violation involved the method of voting used by the ASC in the September 30, 1985 meeting which was described by the ASC chairman in the minutes of that meeting as a "secret ballot." The method of voting is more fully set out in Finding of Fact 15. The BOARD has not selected another architectural firm to be awarded with the contract for the Prototype High School Project. BOARD Rule 6GX6-7003 has not been amended or changed since January 20, 1983. The BOARD has however, recommended to the Superintendent of Schools that he formulate a committee for the purpose of reviewing the criteria and procedures so that this policy can be amended and, in fact, such a committee has met for that purpose. COOK-REIFF'S competence is not at issue in this matter. The BOARD had used a form contract with architectural firms for a number of years. Although this form contract was modified during 1985, the only changes to that contract are contained in the section with respect to professional fees for services rendered. In selecting COOK-REIFF as the architectural firm to be awarded the Prototype High School project, the ASC followed the procedures and applied the criteria contained in the BOARD's Rule 6GX6-70O3.
Recommendation Based on the Findings of Fact and Conclusions of Law recited herein, it is RECOMMENDED that the Respondents School Board of Broward County, Florida enter a final order awarding the contract for architectural services on the Prototype High School to the Petitioner, Cook-Reiff Association, Inc. Respectfully submitted and entered this 6th day of February 1986, in Tallahassee, Florida. WILLIAM R. CAVE 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 6th day of February 1986. APPENDIX TO RECOMMENDED ORDER, CASE NO. 85-3985-BID The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Adopted in Finding of Fact 1, except for last sentence which is included in conclusions of law. Adopted in Finding of Fact 2. Adopted in Finding of Fact 3. Adopted in Finding of Fact 4. Adopted in Finding of Fact 4. Adopted in Finding of Fact 5. Adopted in Finding of Fact 6. Adopted in Finding of Fact 7. Adopted in Finding of Fact 8. Adopted in Finding of Fact 8. Adopted in Finding of Fact 10. Adopted in Finding of Fact 12. Adopted in Finding of Fact 13. Adopted in Finding of Fact 14. Adopted in Finding of Fact 16 but clarified. Adopted in Finding of Fact 15 but clarified. Adopted in Finding of Fact 17. Adopted in Finding of Fact 18 but clarified. Adopted in Finding of Fact 19. Adopted in Finding of Fact 20 but clarified. Adopted in Finding of Fact 21 but clarified. Adopted in Finding of Fact 22. Adopted in Finding of Fact 23. Rejected as unnecessary, immaterial and irrelevant. Adopted in Finding of Fact 24. Adopted in Finding of Fact 25. Rejected as unnecessary. Adopted in Finding of Fact 28. Adopted in Finding of Fact 29. Adopted in Finding of Fact 30. Adopted in Finding of Fact 31. Adopted in Finding of Fact 32. Rulings on Proposed Findings of Fact Submitted by the Respondent 1. Adopted in Finding of Fact 8, but corrected to show the date as May 16, 1985. 2. Adopted in Finding of Fact 9. 3. Adopted in Finding of Fact 10. Adopted in Finding of Fact 11. Adopted in Finding of Fact 2. Adopted in Finding of Fact 12 but corrected to show the date as September 17, 1985. Adopted in Finding of Fact 32. Adopted in Finding of Fact 4. Adopted in Finding of Fact 14 and 15. Adopted in Finding of Fact 15 and 18. Adopted in Finding of Fact 16. Adopted in Finding of Fact 15 with the exceptions of the language secret ballot" which was changed to "procedure was referred to as secret ballot" in the minutes . . ." and that the "voting was . . . conducted prior to any discussion by the committee as to architectural presentations" which are rejected as not supported by the minutes of the September 30, 1985 meeting of the ASC. See Petitioner's Exhibit No. 8. Adopted in Finding of .Fact 15. Adopted in Finding of Fact 15. Adopted in Finding of Fact 20. Adopted in Finding of Fact 21. Adopted in Finding of Fact 21. Adopted in Finding of Fact 24. Adopted in Finding of Fact 24. The first two (2) sentences adopted in Finding of Fact 24. The last sentence is rejected as not supported by substantial competent evidence in that the minutes do not reflect any discussion of "secret balloting." 21. Adopted in Finding of Fact 24 except for the portion indicating that the BOARD discussed "secret balloting" which rejected for the same reasons expressed above in paragraph 20. COPIES FURNISHED: Maurice M. Garcia, Esquire Kenneth A. Rubin, Esquire 2021 Tyler Street Post Office Box 650 Hollywood, Florida 33022 Edward J. Marko, Esquire Suite 322, 1040 Bayview Drive Post Office Box 4369 Fort Lauderdale, Florida 33338-4369 Ralph D. Turlington Commissioner of Education The Capitol Tallahassee, Florida 32301 Superintendent School Board of Broward County 1320 Southwest Fourth Street Ft. Lauderdale, Florida 33312
Findings Of Fact In May, 1987, the Department contracted with B.P. Associates, then owner of the Bay Plaza facility, to lease space at that facility located in Brandon, Florida. A part of the bid conditions required extensive physical renovations of the facility which were being supervised by Coldwell Banker, a real estate brokerage and management firm serving as property manager and construction supervisor. Construction was begun in December, 1987. Mr. Burrwood Yost was hired by the Department as its Facilities Services Manager for the Tampa Region in March, 1988. Mr. Yost soon became dissatisfied with the work being accomplished under Coldwell Banker's supervision and the company's responsiveness to maintenance problems arising at the facility, which the Department had asked to be corrected. As a result of this dissatisfaction with Coldwell Banker's demonstrated inability to properly perform, Mr. Yost recommended that the bid award to B.P. Associates be withdrawn and that the procurement be relet. On June 17, 1988, the bid award to B.P. Associates was withdrawn. On June 1, 1988, however, shortly before the withdrawal of the prior award, ownership of Bay Plaza was transferred to Northern which immediately substituted a new property manager and construction supervisor for Coldwell Banker. The new management firm was Grubb and Ellis, which took over on September 1, 1988. New bids were solicited by invitation to bid on July 15, 1988 which called for approximately 27,122 square feet of leased space to be available by April 1, 1989. The bid invitation clearly stated that "all bids will be evaluated based on the award factors enumerated in the bid submittal form." This form outlined the bid procedure, listing award factors to be considered and specifying the precise amount of weight each factor would be given. Past performance was not listed as a basis for evaluation on the bid invitation form and Mr. Yost admits that past performance was not to be considered as a factor. Five bids were received of which three were deemed responsive. These were Bidder C, Northern; Bidder D, Turner Development Corporation; and Bidder E, Alderwood B. Northern's bid was the lowest of the three responsive bids by more than $2.00 per square foot over the life of the lease. Alderwood was the second lowest. Each of the bids was evaluated by a bid evaluation committee consisting of seven representatives from the various Department program offices that were to occupy the leased space. The chairman of the committee, Ms. Chipman, was placed thereon at the request of Mr. Yost, and was actually a supernumerary since the committee a originally constituted by Mr. Akridge, the Department's Facilities Services Manager Assistant in Tampa, was made up of only six members. A 100 point bid evaluation scale, which was included in the bid package furnished to each bidder, was to be utilized by the committee to evaluate each bid. Prior to beginning their evaluation duties, the committee members were walked through each proposed site, and in the briefing given by Department authorities, specifically advised that prior performance was not a criteria and should not be considered. When the committee members' evaluations were computed, Northern's bid for Bay Plaza received a score of 83.5. Alderwood's bid for its property was given a score of 87.9. Each evaluator rated Alderwood highest and the evaluation committee concluded that, consistent with the overall criteria which called for the lease to be awarded to the lowest and best bid that met program needs, Alderwood's bid was lowest and best. Consequently, the committee recommended that Alderwood receive the award even though Northern's bid for Bay Plaza was lowest in terms of total dollars involved. The bids were evaluated based on three major evaluation criteria. These were Fiscal Costs, Location, and Facility. The Fiscal Cost element was further broken down into three subcategories; rental rates, renewal rates, and moving costs. Northern received 25 points of the 25 available for rental rates because it offered the lowest rental rate. When reduced to present value, Northern's bid for the entire term of the lease was more than $600,000.00 below the next lowest bid and for the first nine years of the lease alone, was $336,799.00 lower. Alderwood was awarded 21.5 points for its rental rate submission. In the area of renewal rates, Northern was awarded 7 of 7 possible points and Alderwood was awarded 2. These awards were not computed by the committee or assigned by them. Instead, the scores were computed on the basis of a present value analysis accomplished in Tallahassee and were entered on the score sheet by Mr. Akridge, the Department's local supervisor for this procurement. Considering the moving costs, however, Alderwood outscored Northern by 3 to 2.7 points. This difference was attributed to an additional moving cost for the Bay Plaza site as opposed to the one move cost if the Alderwood site were chosen. To have the rehabilitation work done at Bay Plaza would have required a move to another location while the work was being done and another move back when it was finished. In the Alderwood case, the Department would move only once. The "Location" criteria also had three subcategories for consideration. They were, general area, in which both bidders received the maximum 10 points; public transportation at 5 points, and environmental factors at 15 points. In the area of public transportation, Alderwood received the full 5 points with Northern receiving 1.1. Department personnel considered the fact that bus service was available through the site at Alderwood, the stop being within wheelchair and walking distance of the building, as being more significant and of higher value than the proposed bus service envisioned in 1989 for Northern's facility which, at the time of the bidding, was not served by a bus. Bus company officials stated an intention to provide bus service to the area in the future. The environmental factors subcategory related to the physical characteristics of the building and the surrounding area and the effect of these factors on the "efficient and economical conduct of Department operations." In this subcategory, Alderwood received a higher score than did Northern's building because the committee was of the opinion the Alderwood facility would be more energy efficient. Current Department occupants of Northern's facility at Bay Plaza contended that because of the large expanses of glass, there would be more heat generated in the building in the afternoon. No official energy efficiency assessment was done of either building because both occupied less than 20,000 square feet. Consequently, the committee analysis here was based on the experience of some committee members and was neither scientific nor professional. The committee was also concerned with the potential for theft because of the large amounts of glass and was of the opinion that the Bay Plaza layout was "confusing." Neither of these judgements carry much weight, however. Another environmental factor considered by the committee concerned the parking availability at each facility. The committee was of the opinion that the layout at Northern's facility was not good. It was long and extended. Staff also was concerned that the several access doors to the Northern facility could cause clients to become confused. More important, however, was their concern that due to the several entrances to the building, it would be difficult to control entry. Alderwood's facility, on the other hand, provided a central entrance for each building and it was felt this would allow tighter security control for the safety of the building occupants. The committee was also impressed by the fact that Alderwood's facility provided a play area for clients' children, and felt that Alderwood's landscaping was more appealing. The rating of Alderwood's handicap access as high, is important. Turning to the third major bid criterion, Facility, Northern's facility was awarded 16.3 points of a possible 20 for layout/utilization while Alderwood's was awarded 18.7 points. For the subcategory, single building, Northern's facility received 6.7 points out a possible 10 and Alderwood's facility was awarded 8.1. As for the final subcategory, street level, both facilities were awarded 5 points. As for layout/utilization, one committee member, Chipman, awarded Alderwood more points because it provided a separate entrance for each program, because it provided covered walkways for weather protection, and because there was less of a "maze" effect in that facility due to its square configuration. This last factor was of concern to other committee members who rejected the idea of clients having to walk through offices to get to the different programs. The wider hallways and better access for handicapped, as was stated previously, were also considered positive factors for Alderwood. Neither facility offered the single building which was a desired characteristic, Mr. Akridge, however, advised the committee in his preparatory briefing that since neither bidder offered a single building facility, the committee could award points on the layout of the multi-unit facility based on the relationship of the individual components to each other. At least two committee members, Chipman and Collins, rated Alderwood's facility better and awarded more points because they felt the layout of that facility allowed a more advantageous grouping of programs within the units. There is substantial evidence, however, that the information furnished the committee was neither complete nor in all cases accurate. Once the committee completed its evaluation, Mr. Akridge tabulated the scores and prepared a "request for bid award" letter dated September 21, 1988 for transmittal to Department officials in Tallahassee. The letter was prepared to report the committee recommendation for the award to Alderwood and to explain why the recommendation was made to award to that bidder as opposed to the low bidder. Review of this letter clearly reflects that Mr. Akridge and the committee were concerned with past performance at the Bay Plaza facility. When Mr. George Smith, a senior management analyst for the Department in Tallahassee received Mr. Akridge's letter, recognizing the possible appearance of consideration of an improper factor, he requested that Mr. Akridge seek and provide more justification for the committee's findings. While Mr. Smith contends he did this because of his concern over costs, the fact remains that Akridge's letter of September 21 did mention past performance which was an invalid consideration. Mr. Smith asked Mr. Akridge to prepare another memo giving additional information about such things as bus service, the difference in rental rates, the building layouts and locations and those factors which the users of the proposed facility, those individuals who were on the committee from the using organization, felt were important to them in the effective accomplishment of their jobs. Mr. Smith clearly indicated he recognized that past performance is not a valid point for consideration and that it would play no part in his analysis of the bids preparatory to making final recommendation for award. In response to Mr. Smith's direction, Mr. Akridge prepared another memorandum dated September 30, 1988. Though by far the greatest portion of this memo is a detailed comparison of the two facilities and the concerns of the committee regarding them, the first paragraph, (1 A) refers to the failure of the former leasing agent to obtain state fire marshal approval and a reference to concern that in light of the fact that Northern is an absentee owner, there might well be a return to slow response times experienced under the prior management contract. Though Mr. Smith recognized that the September 30 memorandum again made reference to prior performance, experienced as he was in the procurement of facilities, he also recognized that "that was not a part of the evaluation criteria" and "basically, just disregarded that." Thereafter, the award was made to Alderwood. Petitioner contends that whether consciously or unconsciously, past performance of Northern's predecessor in ownership influenced the evaluation and bid review process thereby placing Northern at a competitive disadvantage to Alderwood. There is evidence in the record to indicate this conclusion, may be justified. Mr. Yost, the Facilities Services Manager, admits that he was dissatisfied with the performance of the prior management of the Bay Plaza facility and it was because of this dissatisfaction that the decision was made to recommend withdrawal of the prior award and a new bid invitation. Though he claims he deliberately kept himself out of the re-bid process, the evidence indicates that he oversaw it from the beginning and was present and/or involved in almost every part of it. The invitation to bid utilized his name; he attended the pre-bid conference and injected himself into the process by answering questions of bidders; he personally reviewed each bid upon receipt with Mr. Akridge; and, though he turned the committee selection over to Mr. Akridge, specifically requested that a nominee of his own choosing, Ms. Chipman, be appointed. Ms. Chipman, to whom Mr. Yost had previously spoken regarding his dissatisfaction with the prior Bay Plaza operation, was appointed as the seventh member of a committee originally scheduled to have only six members and served as the chairperson thereof. It is also significant to note that while the committee was in session evaluating the bids, Mr. Yost came into the committee room and met with the members while the deliberation process was going on. This creates a definite appearance of impropriety. After the protest was filed by Northern's agent, on November 8, 1988, Mr. Akridge, on behalf of the Department, met with members of the evaluation committee and representatives of Alderwood. During this meeting, the Department representatives explained to Alderwood how they wanted the layout of the facility to be accomplished and directed the architect who was present to prepare preliminary design plans. This appears to have been in contravention of provisions of a Department rule, (10-13.011(2)(a), F.A.C) which calls for the contract award process to be stopped until the protest is resolved. The evaluation criteria, found on page 16 of 17 of the Bid Submittal Form at subparagraph 1A, states that rental rates for the basic term of the lease, evaluated testing a present value methodology at a discount rate of 8.31 percent, would constitute 25 percent of the total evaluation criteria. This requirement was not appropriately applied in this case. The points included on each committee member's evaluation form for this category do not correlate to the present value rates furnished by the Department. Whereas Alderwood's bid was 21 percent higher than Northern's when reduced to present value, Alderwood received 86 percent of the rental rate points given Northern instead of 79 percent of Northern's points as it should have received. As a result, Northern did not receive the appropriate weight for its rental rates points as compared to it's competitor, Alderwood. In addition to the above, there are several examples indicating that points given by the committee were awarded based on inaccurate assumptions, unreliable information, or speculation. These include a failure to recognize that the windows at Bay Plaza are tinted; an inaccurate belief by one committee member that Alderwood's buildings are closer together than Northern's; a failure to properly apportion points by a committee member in the area of public transportation on the mistaken belief that Northern's facility would not have bus service; a mistaken belief that hallways at the Northern facility could not be widened when, in fact, Northern had agreed to renovate the entire facility including the hallways to whatever design the Department requested, (in this regard, Mr. Akridge properly advised the committee it should assume for the purpose of evaluation, that Northern would widen the Hallways if requested) ; the possible improper award of points for moving costs when no information on actual costs was available; a failure by the committee to recognize that major construction planned for in front of the Alderwood facility would hinder what the committee considered that building's better access; a failure to recognize that bid specifications required a security system be installed in any facility leased which would minimize if not eliminate the theft risk; and a lack of information regarding crime rates, police patrols, night lighting, and the nearness of police facilities to the buildings in question.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the intent to award lease no. 590:1853 to, Alderwood B. Partners, Limited, be withdrawn; that a new evaluation committee be appointed to review the bids submitted by the responsive bidders; that this committee be properly briefed as to the requirements of their task and the appropriate standards to be applied thereto; and that the Department thereafter issue an award to the lowest and best bidder as determined by this evaluation committee. RECOMMENDED this is 15th day of March, 1989 at Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalpachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of March, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-5325BID The following constitutes my specific rulings pursuant to Section 120.59(2), Florida statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. BY PETITIONER; Accepted and incorporated herein. Accepted and incorporated herein. First sentence accepted and incorporated herein. Balance accepted. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. Accepted. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted but more in the form of argument than as Finding of Fact. The paragraph is redundant to other evidence already considered. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and as to substance, incorporated herein. BY THE RESPONDENT; & 2. Accepted and incorporated herein. Accepted. - 6. Accepted and incorporated herein. Accepted and incorporated herein. & 9. Accepted and incorporated herein. - 12. Accepted and incorporated herein with comment. Redundant to 12. Accepted and incorporated herein. Accepted and incorporated herein. & 17. Accepted and incorporated herein though 17 is redundant to 16. Accepted and incorporated herein as to the fact that bus service is planned for the Bay Plaza facility in 1989. Accepted with the exception of that portion dealing with Mr. Yost's having nothing to do with the evaluation of the bid which is rejected. Accepted but irrelevant. Accepted and incorporated herein. Accepted and incorporated herein. Accepted with the exception of the disclaimer of Mr. Yost's participation in the selection of committee members. Accepted and incorporated herein. Accepted. Accepted with the exception of the last sentence which is not a Finding of Fact but a recitation of testimony. First sentence rejected as a recitation of testimony. The second sentence is accepted. Accepted and incorporated herein. Accepted and incorporated herein. Rejected as a recitation of evidence contained in Mr. Smith's deposition. Not a Finding of Fact. Accepted and incorporated herein. COPIES FURNISHED: Mark A. Brown, Esquire Carlton, Fields, Ward, Emmanuel, Smith, Cutler & Kent, P.A. Post Office Box 3239 Tampa, Florida 33601 Richard Candelora, Esquire Trenam, Simmons, Kemker, Scharf, Barkin, Frye & O'Neill, P.A. Post Office Box 1102 Tampa, Florida 33601 Jack D. Farley, Esquire DHRS District Six Legal Office 400 West Buffalo Avenue, Room, 500 Tampa, Florida 33614 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32399-0700 John Miller, Esquire DHRS General Counsel 1323 Winewood Blvd. Tallahassee, Florida 32399-0700 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32399-0700
The Issue Whether DOL should accept either the bid Red Enterprises submitted for T- shirts, in response to invitation to bid No. 89- 026-LOT/Ten/A, or the bid submitted by Party Time, or neither?
Findings Of Fact By invitation to bid No. 89-026-LOT/TEN/A (the ITB), petitioner's Exhibit No. 2, the DOL originally solicited bids from suppliers of beach towels, men's caps ("golf style, sewed back") and canvas sport bags. By an addendum dated March 24, 1989, the invitation was expanded to include 10,000 men's T- shirts. Petitioner's Exhibit No. 2. Three bidders responded: Party Time, Red Enterprises and Bagley Advertising. Respondent's Exhibits Nos. 1, 2 and 3. Only Party Time and Red Enterprises bid on the T-Shirts, Respondent's Exhibit No. 3; Petitioner's Exhibit No. 1, and Party Time's bid was low. Petitioner's Exhibit No. 1; Respondent's Exhibit Nos. 1 and 2. Red Enterprises's bid was responsive to the ITB. With the required paperwork, Red Enterprises submitted a sample T-shirt, along with samples of the other items. Although Party Time submitted samples of caps and towels, it did not submit a sample T-shirt. DOL rejected Party Time's bid on T-shirts for this reason, and announced its intention to award the T- shirt contract to Red Enterprises. Petitioner's Exhibit No. 1. ITB Provisions In paragraph 2.1, the ITB states, under the heading "Samples of Products to be submitted with Bid": SECTION 2: ITEMS REQUESTED 2.1 Samples of Products to be Submitted with Bid. Each bidder shall submit with its bid a sample of the product for each item bid. The samples shall be made of the materials to be used in the final product, if the bidder is successful, and shall be product identified. The samples shall be inspected to determine whether they meet the minimum specifications required. Samples of items, when called for, must be furnished free of expense on or before bid opening time and date, and if not destroyed may, upon request, be returned at the bidder's expense. Each individual sample must be labeled with bidder's name, manufacturer's brand name and number, bid number and item reference. The Department reserves the sole right to determine whether the sample meets or exceeds the quality requirements of the specifications. All such determinations made by the Department are final. (emphasis supplied) Later on the ITB lists all items which comprise the bid, without mentioning samples: 3.1.5 Bids should be presented in the following sequence: Identification of Respondent per Section 3.2 of ITB. Authorized representative of Respondent per Section 3.3 of ITB. Bidder's Affidavit (Attachment A) and Registration Form (Attachment B), if applicable, or notation that said Form is already on file with the Department. Price Sheet per Section 3.5 of ITB. (Attachment C). Florida-licensed per Section 3.6 of ITB. Minority Certification per Section 3.9 of ITB. But still later the ITB explicates the importance of complying with requirements which use "shall . . . except to indicate simple futurity": SECTION 4. MANDATORY REQUIREMENTS The Department has established certain mandatory requirements which must be included as part of any submitted bid. The use of "shall", "must" or "will" (except to indicate simple futurity) in this ITB indicates a mandatory requirement or condition. The words "should" or "may" in this ITB indicate desirable attributes or conditions, but are permissive in nature. Deviation from, or omission of, such a desirable feature will not by itself cause rejection of a bid.... Finally, the ITB specifies DOL's intentions, in the event of a bidder's noncompliance with mandatory requirements: Proposal Submission Only bids submitted in the time frame stated herein and with the content required above will be reviewed and considered by the Department. Review Criteria If Respondent's bid does not meet all the mandatory requirements the bid may be rejected by the Department as nonresponsive. The Department seeks to contract for the items described herein with the responding firm who submits the lowest and best bid. Responsive bids will be evaluated and judged by the Department based on cost. In Section 5.3, the ITB refers to "the lowest and best responsive bid," and Attachment C states, "Bid [e]valuation and award of contract will be based solely on the unit price." The ITB put reasonable bidders on notice that DOL expected bidders to furnish samples of items on which they bid. Except for T- shirts, Party Time did submit samples of everything on which it bid.
Recommendation It is, accordingly, RECOMMENDED: That DOL award the contract for 10,000 men's T-shirts to Red Enterprises. DONE AND ENTERED this 2nd day of June, 1989, in Tallahassee, Leon County, Florida. ROBERT T. BENTON, II, 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 June, 1989. APPENDIX Petitioner's proposed findings of fact Nos. 1 through 15 have been adopted, in substance, insofar as material, and to the extent they are more than mere argument. Respondent's proposed findings of fact Nos. 1, 2, 4, 5, 6, 7, and 8 have been adopted, in substance, insofar as material. With respect to respondent's proposed finding of fact No. 3, the evidence did not establish that Party Time did not have a sample. COPIES FURNISHED: Rebecca Paul, Secretary Department of Lottery Capitol Complex Tallahassee, FL 32399-4002 Nan Mancha Red Enterprises 1308 High Road Tallahassee, FL 32304 Linda Bagley Wiggs Bagley Advertising 4406 South Florida Avenue Suite 17 Lakeland, FL 33813 Louisa E Hargrett, Esquire Department of Lottery Capitol Complex Tallahassee, FL 32399-4002 John E Fuller Party Time Specialties, Inc. 12-14 East Bay Street, Suite 2101 Jacksonville, FL 32202
The Issue The issues are 1) Whether the Department of Health and Rehabilitative Services (HRS) properly rejected all bids on Lease Bid No. 590:2133, and 2) Whether either Petitioner is entitled to award of Lease Bid No. 590:2133 as the lowest and best responsive bidder.
Findings Of Fact On October 16, 1989, HRS issued an Invitation to Bid (ITB) on Lease Bid No. 590:2133 for 43,634 net square feet of office space in Ocala, Marion County, Florida. The bid package contained specifications, evaluation criteria, and numerical weight to be assigned to each criteria. The bid package indicated the area of emphasis placed on the facility by HRS which focused on client safety, public access, availability of public transportation, and parking. The emphasis on each area was indicated by the weighted points to be given in each area. On January 24, 1990, HRS received bids from both Wharton and Curtis. Both bids were responsive. Curtis submitted the apparent low bid and Wharton submitted the apparent second lowest bid. Curtis, as Trustee, is the owner of the property which is presently occupied by HRS in Ocala, Florida. The lease on these premises was awarded in 1980 and expires in 1990. Curtis purchased the leasehold in April of 1988 while HRS was a tenant and subject to the existing lease. Philip J. Procacci is the President of Procacci Development which is the general partner in Wharton Investment Group. The actual bids submitted were not offered into evidence by any party in this proceeding. Susanne Casey, the District Administrator of HRS District 3, is ultimately responsible for the leasing of all HRS facilities in the district, including facilities in Marion County. Casey appointed a bid evaluation committee to review and evaluate the responsive bids based on the criteria stated in the bid package. The committee was to make a recommendation regarding the lowest and best bidder. Before the bids were opened, the bid evaluation committee met and agreed upon objective parameters for each of the evaluation criteria. These parameters established standards against which each committee member could independently evaluate and award points on each bid. The evaluation criteria in the bid package assigned points in three major categories: associated fiscal costs, location, and facility. Associated fiscal coasts were further broken down into (a) rental rates for the basic lease term, (b) rental rates for optional renewal terms, and (c) associated moving costs. The maximum points available in each of these categories were fixed in the bid package and could not be altered by the committee. These criteria are standard in a lease procurement through out the state. State regulations require that all bids for lease space in the state evaluate rental rates using present value methodology. See Rule 13M-1.029, Florida Administrative Code. This means that the proposed rental rates in all bids are calculated to present value dollars for the purpose of comparison. The Department of General Services has a computer program, the sole function of which is to calculate the present value of the rental rates. The program has nothing to do with the assignment of points under the criteria, but is used as a tool to allow comparison of the bids. The present value of the Curtis bid was $662,464 lower than the present value of the Wharton bid. The rental rates were awarded points under criterion 1a of associated fiscal costs. The committee awarded the full 20 points to Curtis and awarded 5 points to Wharton. The committee members awarded these points in accordance with the standards and formula they had agreed on prior to the bid opening. The formula the committee used was not the more commonly used formula, but it was reasonable and rational and it was fairly applied to the bids in this case. There is no rule or policy of HRS or of the Department of General Services (DGS) that mandates that a particular formula be used in awarding points for the rental rate criterion 1a. There is a formula that HRS and DGS recommend as guidance of a methodology that is appropriate and reasonable, but the recommendation is not binding on the committee or on the District Administrator. There was another criterion of associated moving costs considered as part of the associated fiscal costs. Each committee member awarded 10 points to Wharton and 8 points to Curtis on this item. Wharton received 10 points because it sent a letter with its bid in which it offered to pay all moving costs incurred by HRS in a move to its building. Curtis received 8 points because HRS already occupied two of its buildings and would have limited moving costs in moving into the two additional buildings included in its bid. The bid specifications and bid package contained no indication that a bidder could offer to pay all moving costs as part of its bid. In fact, Wharton submitted its letter offering to pay all moving costs as a result of its discussion with one committee member, T.C. Little. Mr. Little is also the General Services Manager for HRS District 3 and is involved with all bids in the district. Mr. Little interpreted the bid specifications to permit such an offer even though the bid specifications were silent on the issue. At page 5 of the bid package, it is clearly stated that questions concerning the bid are to be directed to the project contact person. It further states: Any questions which might be prejudicial to other bidders will be answered in writing in the form of a clarification to the bid and will be sent to all prospective bidders. On that same page, the bid specifications address proposal of alternatives by stating: For evaluation purposes each bid submitted will be evaluated as to adherence to the specifications requested. If a bidder desires to propose alternatives to the specified specifications, he/she may do so by attaching a sheet to the bid submittal document titled Alternatives. However, these alternatives will not be presented to the bid evaluation committee for use in comparison of bids and can only be considered after an award of bid is made. The project contact person was Donald J. Cerlanek and any request for clarification should have been addressed to him and not to Mr. Little. Mr. Little's gratuitous advice and interpretation of the bid specifications made to Wharton and not to all bidders was incorrect, violated the terms of the bid specifications, and was improper. The bid specifications do not permit an offer to pay all moving costs to be considered in the award of points under the associated moving costs criteria. Such an offer can only be considered as an alternative proposal and cannot be considered by the bid evaluation committee in comparing the bids. Under the standards established by the committee, Wharton should have received 5 points on the associated moving costs criterion instead of 10 points. The committee members individually evaluated each bid and awarded points within the parameters they had established. Except for the incorrect award of points on the associated moving costs criteria, the scoring method and award of points by each committee member was rationally and reasonably related to the relative importance of each criterion as established in the bid package and was neither arbitrary nor capricious. Each committee member came to the conclusion that the Curtis bid was the lowest and best based on the award of points in each member's independent evaluation. On February 13, 1990, they recommended in writing that Curtis be awarded the bid. On February 19, 1990, the District Administrator adopted the committee's recommendation and reported the recommendation to Steven Gertel, the assistant staff director for HRS Facilities Services in the Office of General Services. On March 7, 1990, Mr. Gertel sent a memo to the District Administrator. The memo said: Review of the bid evaluation committee's recommendation has disclosed that the committee used a non-standard method of evaluating present value of rental rate for the lease term. Please provide an explanation of this variation to accepted practice. In fact, the committee used the established DGS formula to calculate the present value of rental rates. However, the committee used its own formula to award points based on the present value of rental rates. There was nothing impermissible about the committee's actions or formula. Because of a fear of a bid protest, Ms. Casey, the District Administrator, sent a notice rejecting all bids on the project. No other reason was articulated for rejecting all bids. The fear of a bid protest is not a legally sufficient reason to reject all bids, particularly because it is not stated in the bid specifications and is based on speculation about a future event which may never occur. HRS did reserve the right to reject all bids in the bid package, but it may not do so for an improper purpose. Fear of a bid protest is not a proper purpose. Wharton alleged and attempted to show some level of collusion between Curtis and Mr. Cerlanek of HRS. While Mr. Curtis had several contacts with Mr. Cerlanek about the project, such contacts are not per se inappropriate because Mr. Cerlanek is the District 3 Lease Coordinator and is the proper person to discuss future projects with potential bidders. No competent, substantial evidence was presented to show that Mr. Cerlanek discussed anything that was not public record or anything that gave Mr. Curtis any advantage in the bid process. Mr. Cerlanek did not tell Mr. Curtis what would be in the bid package or what would be needed to insure award of the bid to Curtis.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health and Rehabilitative Services enter a Final Order awarding the bid in Lease No. 590:5133 to Gail Curtis, as Trustee, as the lowest and best bidder. DONE and ENTERED this 27th day of September, 1990, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of September, 1990. APPENDIX TO THE RECOMMENDED ORDER IN CASE NOS. 90-2459BID AND 90-2666BID The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Wharton 1. Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 2-4(5) and 19(27). 2. Proposed findings of fact 1, 5, 11-17, 20, 29, 30, 38, 39, 45, 46, 51, and 57 are subordinate to the facts actually found in this Recommended Order. 3. Proposed findings of fact 6, 8-10, 18, 21, 24, 25, 27, 31-34, 37, 40-44, 48- 50, 52, and 55 are irrelevant. Proposed findings of fact 7, 28, 56, 58, and 59 are unsupported by the competent, substantial evidence. Proposed findings of fact 22, 23, 26, 35, 36, 38, 47, 53, and 54 are mere summaries of testimony and are not appropriately framed as proposed findings of fact. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Curtis, as Trustee Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 4(11), 7&8(13), 9(14), and 15(25). Proposed findings of fact 1-3, 5, 6, 10-12, and 16-26 are subordinate to the facts actually found in this Recommended Order. Proposed findings of fact 13, 14, and 27-29 are unnecessary. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Department of Health and Rehabilitative Services Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: Part I paragraphs 2(1&2), 3(4), 4(8), 5(30), Part II paragraphs 2(1&2), 3(3), 4(4), 5(8), 6(9), 8(10), 19(25), and 20(26). Proposed findings of fact Part I paragraphs 1 and 6 and Part II paragraphs 1, 7, 9, 10, 12-18, and 21-24 are subordinate to the facts actually found in this Recommended Order. Proposed finding of fact 11 is irrelevant. Copies furnished to: Robert A. Sweetapple Attorney at Law 465 East Palmetto Park Road Boca Raton, FL 33432 Harry R. Detwiler, Jr. Attorney at Law Holland & Knight Post Office Drawer 810 Tallahassee, FL 32302 Gloria Fletcher Attorney at Law 515 North Main Street, Ste. 300 Gainesville, FL 32607 Frances S. Childers District Legal Counsel Department of HRS 1000 Northeast 16th Avenue Gainesville, FL 32609 Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700
The Issue This is a bid challenge case in which the primary issue is whether the Petitioner's bid is responsive to the RFP.
Findings Of Fact Some basic background facts The Department issued Request for Proposals No. 700:0652, Office Space (the "RFP"). The RFP requested bidders to submit proposals to provide 7,750 square feet of office space (+/- 3 percent) in Broward County to be leased by the Department for a probation and parole office. Under the RFP terms the space had to be available by June 1, 1993. Proposals had to be filed with the Department by January 5, 1993. In-Rel Acquisitions, Inc., and Janc, Inc., submitted bids. Pursuant to an evaluation of the bids conducted by the Department, In- Rel Acquisitions, Inc., was given a contingent award of the lease on March 31, 1993, as the vendor with the lowest price and the overall highest evaluation score. The contingent award letter of March 31, 1993, read as follows in pertinent part: It is the intent of the Department of Corrections to award the above referenced bid to In-Rel Acquisitions, Inc., as the vendor with the lowest bid price and the overall highest evaluation score. The award to In-Rel Acquisitions, Inc., is contingent upon: (a) obtaining the necessary zoning approval to operate a probation and parole office at the bid premises by May 6, 1993, and (b) the Department obtaining sufficient assurances from the Resolution Trust Corporation that the bid premises will not be taken over by the RTC and the Department's leasehold interest will not be affected. On May 18, 1993, the Department issued a letter awarding the subject lease to Janc, Inc., because the Department was of the view that In-Rel Acquisitions, Inc., had not met the conditions of the contingent award of March 31, 1993. The award letter of May 18, 1993, read as follows, in pertinent part: This letter is to inform you that the Department of Corrections has determined that the award of the lease for the above referenced bid is hereby made to Janc, Inc. The bid from In-Rel Acquisitions, Inc. has been rejected because it has not met either of the conditions stipulated on the March 31st award letter, and the property has not been properly maintained under the existing lease agreement. Both the contingent award letter of March 31, 1993, and the award letter of May 18, 1993, contained "boiler-plate" language advising the addressee of the basic details of the written protest process. In-Rel Acquisitions, Inc., filed a timely protest of the award to Janc, Inc. Facts about the zoning situation The award of the lease to In-Rel Acquisitions, Inc., was made contingent because the property was not properly zoned to support a probation and parole office for the Department. At the time of soliciting bids on the subject project, the Department was currently leasing the space proposed by In-Rel Acquisitions, Inc., and had done so for almost five years. Shortly after the deadline for the submission of bids, the Department was notified that it was in violation of the Plantation City Code because the office was not properly zoned, and the Department was subject to fines if it did not obtain proper zoning or leave the premises by June 1. The fine was at the rate of $200.00 per day. In-Rel Acquisitions, Inc., did not obtain necessary zoning approval by May 6, 1993. First, the zoning approval passed by the City of Plantation limited the hours of operation of the probation office. As approved by the City of Plantation, the Department can only operate its probation office Monday through Friday from 8:00 a.m. to 5:30 p.m., plus one evening a week until 7:00 p.m. These time limits do not satisfy the contingency placed in the March 31, 1993, award because the Department cannot operate a probation and parole office within these limited hours. The Department has 14,000 probationers in Broward County under its supervision. The caseload puts a severe strain on the caseworkers making it essential that they have flexible hours to get their job done. The caseload also requires working evenings and weekends. For example, some probation officers must maintain evening hours to test offenders for drugs. Although the officers could make the offenders visit the Department's office during the day, this would jeopardize the employment status of many offenders. Therefore, the Department needs flexible evening hours to do the drug testing. One of the major functions of the probation officer is to help rehabilitate the offender. That means that the Department must do what it can to help the offender stay employed. In addition, the probation officers need evening and weekend hours to do their paperwork, including preparing weekly reporting schedules, and recording their contacts. The officers also need evening hours to receive monetary payments due from offenders, meet with offenders who must report in person into the office each month, and counsel offenders in the office. Under the prior lease with In-Rel Acquisitions, Inc., the Department had operated and held evening hours at a minimum of three nights per week. This included both probation officers and offenders appearing at the office during the evenings. The RFP specifically notified bidders that there would be evening hours. Section B(14) of the RFP states: Staff of both sexes will be required to work in this facility during both daylight and evening hours. An environment in which staff can expect to be safe is essential. Section D(11) of the General Provisions of the subject RFP reads as follows: Federal, state, county, and local laws, ordinances, rules, and regulations that in any manner affect the items covered herein apply. Lack of knowledge by the bidder will in no way be a cause for relief from responsibility. The records of the City of Plantation meetings show that the May 5, 1993, vote was not final. A mandatory second reading of the zoning change took place on May 12, 1993, and the minutes were approved on May 19, 1993, and June 2, 1993, with respect to the first and second reading. Even if the zoning change with its limited hours had been sufficient to meet the terms of the contingent award, the limited zoning approval was not received before May 6, 1993; and therefore, the mandatory second reading of May 12, 1993, caused the limited zoning approval to be untimely. Finally, the limited and untimely zoning change as approved on May 5, 1993, was itself contingent on satisfying all concerns of the Landscape Architect. Facts regarding the RTC assurances The second award contingency required In-Rel Acquisitions, Inc., to provide the Department with sufficient assurances from the Resolution Trust Corporation (RTC) that the bid premises would not be taken over by the RTC and that the Department's leasehold interest would not be affected. The property submitted by In-Rel Acquisitions, Inc., was in litigation; the RTC as successor mortgagee, had filed or secured a Notice of Lis Pendens, an Amended Complaint, a Summary Final Foreclosure Judgment, and a Notice of Sale. The RTC has an interest in the property offered by In-Rel Acquisitions, Inc. Paragraph 1(E) of the Summary Final Foreclosure Judgment provides that the Summary Final Foreclosure Judgment shall eliminate the interest of anyone that has acquired an interest since the filing of the Lis Pendens, including the Department's leasehold interest if it were to enter into a lease on the property. The property bid by In-Rel Acquisitions, Inc., was subject to a second mortgage. The record does not reflect that the first mortgagee and the second mortgagee entered into any type of written agreement not to disturb the leasehold interest of the Department. By letter dated May 11, 1993, an attorney for the RTC responded to the Department's request for assurances. The May 11, 1993, letter included the following: Pursuant to your request of yesterday, I am writing to belatedly confirm the April 19, 1993 telephone conference had you, Robert Gellman of Real Estate Recovery, Inc., and I. This telephone conversation was had to provide the Department of Corrections (the "Department") with the assurances requested from the RTC in the Department's March 31, 1993 letter of intent to award the subject least [sic] to In Rel Acquisitions, Inc. During this discussion you expressed the concern of the Department that the RTC intended to take title to the property and would then utilize special powers and privileges to dispossess the Department. If that were to be the case, you indicated that the Department would want an assurance that it would receive 90-days' notice before it could be dispossessed. (You indicated that 90-days is how long it would take to complete the bid process that would have to precede the Department's move.) Robert Gellman indicated that he was pursing [sic] numerous resolutions to the pending litigation, some of which might involve the RTC's taking title to the property and others which might not. Mr. Gellman assured you, however, that the RTC perceived it to be in its own best interest, and in the interest of any subsequent landlord, that the Department be kept happy and its tenancy undisturbed. Mr. Gellman also explained that he could not agree to anything at the time, as the appropriate committee approval had to be secured, but that he anticipated no problem in obtaining the necessary approvals of any writing consistent with our discussions once those writings were prepared. (I believe at the time we contemplated a written lease and a written assurance letter from the appropriate RTC official.) You indicated that your concerns had been satisfied and that these assurances were sufficient to satisfy the Department. The three of us discussed that it would not make sense to begin drafting anything at that time as the issues regarding the property's zoning still had to be cleared up and our efforts might otherwise "be all for not." Accordingly, it was mutually decided that we would wait to see the outcome of the May 5, 1993 hearing on the zoning issue before proceeding further. In the interim you indicated that you would be providing us with a list of the specific items of tenant improvements that your local officials expected to have made to the property. (We received this list on May 3, 1993.) On May 5, 1993 the Plantation City Council approved In-Rel Acquisition Inc.'s, request for a rezoning of its property and for a "special use" condition by a 4-0 vote, thus effectively resolving the zoning issue. Yesterday you and I spoke on this issue and discussed the situation. I indicated that the RTC is now in a position to provide you with written assurance that it has no intention of dispossessing the Department or interfering with its lease tenancy (either under the old or the new lease), and that the Department's leasehold interest would not be affected by the RTC taking title to the property (if it ever does). I asked and you indicated that this would give you what you needed and everything would be fine. In addition, I indicated that once the lease by and between the Department and In Rel is finalized, the RTC, if it still owns the note and mortgage, would be able to approve same. In light of the foregoing your call to me this morning, indicating that the Department had decided to withdraw its award to In Rel Acquisitions, Inc. and make the award to "Viloci" (phonetic(?), the next ranked bidder. During this discussion you indicated that Viloci's legal counsel had stated that the RTC would never be able to provide the Department with the requisite assurances. It is unfair for you to make decisions based in whole or in part on any statements made by Viloci's counsel regarding what the RTC can and cannot do without giving us an opportunity to respond -- especially in light of your indications on April 19th and again yesterday that the Department was satisfied with the RTC. The record reflects that the "Notice of Sale" failed to contain language providing that the property would be sold subject to any leasehold interest, either previously or subsequently acquired.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that a Final Order be issued in this case dismissing the Petition of In-Rel Acquisitions, Inc., and awarding the subject lease to the Intervenor, Janc, Inc. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 17th day of September 1993. 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 17th day of September 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-3438BID The following are the Hearing Officer's specific rulings on all proposed findings of fact submitted by all parties. Proposed Findings of Fact submitted by Petitioner Paragraph 1: First three sentences accepted in substance. Fourth sentence rejected as constituting primarily irrelevant or subordinate details. Last sentence reject as contrary to the greater weight of the evidence to the extent it is intended to imply that the zoning change obtained was sufficient. Paragraph 2 and 3: Rejected as contrary to the greater weight of the evidence. Paragraphs 4 and 5: Accepted in substance. Paragraph 6: The first two sentences are rejected as irrelevant or as subordinate and unnecessary details. Last sentence rejected as irrelevant and also as contrary to the greater weight of the evidence and as suggesting implications not warranted by the evidence. Paragraph 7: Rejected because it goes further than the evidence and suggests inferences not warranted by the evidence. Messrs. Gellman and Guerra told Mr. Ferst that they did not expect that the Department would have any problems with RTC, but the statements of Messrs. Gellman and Guerra stopped short of making any guarantees or of binding the RTC. Paragraph 8: Rejected as contrary to the greater weight of the evidence. Paragraph 9: Accepted in substance, with the deletion of the words "in ignoring the foregoing." Paragraph 10: Rejected as constituting a summary of a party's argument or statement of position, rather than a proposed finding of fact. Paragraph 11: First sentence is accepted in substance. Second sentence is accepted as literally true, but as also substantially irrelevant because during most of the original five-year lease there was no issue about hours of operation because there was no effort at restriction of hours of operation. The last sentence is rejected as not supported by persuasive competent substantial evidence. Paragraph 12: The first two sentences are rejected as constituting a summary of a party's argument or statement of position, rather than a proposed finding of fact. The third and fourth sentences are rejected because they go further than the evidence and suggest inferences not warranted by the evidence. As noted above, Messrs. Gellman and Guerra told Mr. Ferst that they did not expect that the Department would have any problems with RTC, but the statements of Messrs. Gellman and Guerra stopped short of making any guarantees or of binding the RTC. Paragraph 13: Rejected as constituting argument or proposed conclusions of law, rather than proposed findings of fact. Paragraph 14: First two sentences accepted in substance. Last sentence rejected as constituting argument or proposed conclusions of law, rather than proposed findings of fact. Paragraph 15: Rejected as constituting argument or proposed conclusions of law, rather than proposed findings of fact. Paragraph 16: It is accepted that Messrs. Gellman and Guerra made statements as to what they expected the RTC's position to be, but, as noted several times above, the statements of Messrs. Gellman and Guerra stopped short of making any guarantees or of binding the RTC. Proposed findings submitted by Respondent Paragraphs 1, 2, 3, 4, 5, 6, 7, 8 and 9: Accepted. Paragraph 10: Rejected as constituting subordinate and unnecessary restatement of a party's position. Paragraphs 11, 12 and 13: Accepted in substance. Paragraph 14: Rejected as repetitious. Paragraphs 15, 16 and 17: Accepted. Paragraph 18: First sentence is accepted. The second sentence is rejected as constituting argument, rather than proposed findings of fact. Paragraphs 19, 20, 21, 22, 23, 24, 25, 26, 27 and 28: Accepted in substance. Paragraph 29: Rejected as constituting argument or proposed legal conclusion, rather than proposed findings of fact. Paragraph 30: Accepted. Paragraph 31 and 32: Rejected as constituting argument or proposed legal conclusion, rather than proposed findings of fact. Paragraphs 33 and 34: Accepted in substance. Paragraphs 35 and 36: Rejected as irrelevant or as subordinate and unnecessary details. Paragraph 37: Rejected as constituting argument or proposed legal conclusion, rather than proposed findings of fact. Paragraphs 38, 39, 40 and 41: Rejected as irrelevant or as subordinate and unnecessary details. Paragraphs 42, 43, 44 and 45: Rejected as constituting argument or proposed legal conclusion, rather than proposed findings of fact. Paragraphs 46, 47, 48 and 49: Accepted in substance. Paragraph 50: Accepted. Paragraph 51: Rejected as constituting argument or proposed legal conclusion, rather than proposed findings of fact. Paragraph 52: First sentence rejected as subordinate and unnecessary details. Second sentence rejected as repetitious. Paragraphs 53, 54 and 55: Rejected as constituting argument or proposed legal conclusion, rather than proposed findings of fact. Paragraph 56: First sentence accepted in substance. Second sentence rejected as constituting argument, rather than proposed findings of fact. Paragraph 57: Accepted in substance. Paragraph 58: Rejected as irrelevant or as subordinate and unnecessary details. Paragraphs 59, 60, 61, 62, 63 and 64: Rejected as primarily constituting argument or proposed legal conclusion, rather than proposed findings of fact. Proposed findings submitted by Intervenor Although there are some differences in the numerical sequence, the vast majority of the proposed findings of fact submitted by the Intervenor are identical to those submitted by the Respondent. It would serve no useful purpose to repeat the rulings on all of those findings. The following rulings address the few proposed findings submitted by the Intervenor that are different from the ones submitted by the Respondent. Paragraph 11: Rejected as constituting subordinate and unnecessary restatement of a party's position. Paragraph 30: Rejected as constituting argument or proposed legal conclusion, rather than proposed findings of fact. Paragraph 37: Rejected as irrelevant or as subordinate and unnecessary details. Paragraph 44: Rejected as constituting argument or proposed legal conclusion, rather than proposed findings of fact. Paragraph 54: Rejected as constituting argument or proposed legal conclusion, rather than proposed findings of fact. Paragraphs 55, 56, 57, 58, 59 and 60: Accepted in substance. Paragraph 61: Rejected as constituting argument or proposed legal conclusion, rather than proposed findings of fact. Paragraphs 62, 63 and 64: Accepted in substance. Paragraphs 65, 66 and 67: Rejected as constituting argument or proposed legal conclusion, rather than proposed findings of fact. COPIES FURNISHED: Michael S. Riley, Esquire 200 East Las Olas Boulevard, Suite 1400 Fort Lauderdale, Florida 33301 Steven S. Ferst, Esquire Assistant General Counsel Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-2500 Joseph J. Villacci, Esquire 315 Northeast Third Avenue, Suite 200 Fort Lauderdale, Florida 33301 Harry K. Singletary, Jr., Secretary Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-2500 Louis A. Vargas, General Counsel Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-2500
Findings Of Fact Based upon the documentary evidence received and the entire record compiled herein, I hereby note the following findings of fact: Notice and Invitation to Bid on State Project Number 72001-3448 (the project) was extended to various contractors by the Respondent, Department of Transportation, on August 1, 1985. Sealed bids on the project were opened August 28, 1985. The scope of the project involved cleaning and painting the structural steel of the Buckman Bridge over the St. Johns River in Jacksonville, Florida. (State Bridge Numbers 720249 and 720343). The bids were opened and Petitioner was the apparent low bidder on the project with a bid amount of $193,000. The Department of Transportation, on October 2, 1985, rejected all bids "due to error in quantities in plans." According to the contract plans and specifications utilized by the Department of Transportation for the project, the beams, girders, bracing and trusses were composed of 2,540 tons of structural steel. The plans were in error and the tonnage of structural steel was less than 2,540 tons. Petitioner, upon visiting the job site as required, immediately recognized that there was less steel in the bridge than shown in the plans. In submitting and formulating his bid, the Petitioner considered the amount of work and materials which would actually be required to complete the project. 6 Prior to the bids being posted on the project, the Department of Transportation discovered that the amount of structural steel noted in the plans was grossly overestimated. On October 2, 1985, the Department of Transportation notified bidders in writing that all bids submitted on the project were rejected and that the plans would be revised and the project relet.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is, RECOMMENDED that the petition of Industrial Enterprise Sandblast and Painting, Inc., protesting the rejection of all bids on State Project No. 72001- 3448, be dismissed. DONE AND ORDERED this 11th day of December 1985 in Tallahassee, Florida. W. MATTHEW STEVENSON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of December 1985. APPENDIX Respondent's Findings of Fact FINDING RULING Accepted; see Recommended Order paragraph 1. Accepted; see Recommended Order paragraph 2. Accepted, but not included because subordinate. Accepted; see Recommended Order paragraph 4. Accepted; see Recommended Order paragraphs 3 and 6. Accepted; see Recommended Order paragraphs 3 and 6. Accepted; see Recommended Order paragraph 6. COPIES FURNISHED: HONORABLE THOMAS E. DRAWDY, SECRETARY DEPARTMENT OF TRANSPORTATION HAYDON BURNS BUILDING TALLAHASSEE, FLORIDA 32301 A. J. SPALLA, ESQUIRE GENERAL COUNSEL DEPARTMENT OF TRANSPORTATION 562 HAYDON BURNS BUILDING TALLAHASSEE, FLORIDA 32301 LARRY D. SCOTT, ESQUIRE DEPARTMENT OF TRANSPORTATION HAYDON BURNS BUILDING, M.S. 58 TALLAHASSEE, FLORIDA 32301-8064 INDUSTRIAL ENTERPRISE SANDBLAST & PAINTING, INC. P. O. BOX 1547 1502 FOX RUN DRIVE TARPON SPRINGS, FLORIDA 32486-1547
The Issue Whether the Petitioner was the lowest responsive bidder in Lease No. 590:1975, and therefore entitled to the contract award.
Findings Of Fact In 1988, the Department made the determination that it would not exercise its option on leased space owned by the Petitioner Dyess, in Clewiston, Florida. Bid documents were prepared by the agency for its current office space needs. Bid proposals were solicited through newspaper advertisements and personal contact with owners, developers, and realtors within the Clewiston area. The Department included Dyess in its solicitations. He was sent an Invitation to Bid for Existing Facilities by the Department. This bid package contained all of the bid documents for the bid referred to as Lease Number 590:1975. The Invitation to Bid was issued by the Department for approximately 7,962 square feet of net rentable office space in Clewiston, Florida. The invitation was prepared using HRS Facilities Form R01-87. The form used by the Department for soliciting and accepting competitive proposals for the leased space was required to comply with all conditions and requirements adopted by the Department of General Services, as set forth in Rule 13M-1.015(3)(e), Florida Administrative Code. The Department of General Services is the agency which administers real property leasing for the State of Florida for leased space of 2,000 square feet or more in privately owned buildings. During the bidders' conference held on April 26, 1988, Mr. Michael J. Sedgwick, the agency's representative, was questioned about the agency's interpretation of the term "dry and capable of being physically measured" which is set forth on page two of the Invitation to Bid and page three of the Bid Submittal Form. Page two of the Invitation to Bid is a glossary which defines various terms used within the bid documents. The term "existing building" is defined as follows: To be considered as existing, the entire space being bid must be dry and capable of being physically measured to determine net rental square footage at the time of the bid submittal. Paragraph 10 on page three of the Bid Submittal Form reiterates the definition of an "existing building" as set forth in the Invitation to Bid. The language in the bid documents which defines the term "existing building" is identical to the language in Form BPN 4136, which has been promulgated as a rule by the Department of General Services as the format for specifications for the solicitation of leased spaces by the State of Florida. In response to the request for an interpretation, Mr. Sedgwick contacted Mr. George Smith, who administers the leasing program for the Department in Tallahassee, and obtained the following definition: "Dry and measurable" consists of four things: a slab, four corners, a roof, and a valid building permit if construction is in progress. The definition given by Mr. Smith was verbally communicated to the prospective bidders who attended the conference. This definition was verbally communicated to the Petitioner by Mr. Sedgwick on April 27, 1988. The Petitioner timely submitted a bid in Lease Number 590:1975 on the Department's Bid submittal Form by May 24, 1988. On page three of this form, each bidder was required to acknowledge the bid requirements contained on that page by placing his initials in the bottom right hand corner. The Petitioner Dyess acknowledged the requirement that the proposed space must be an "existing building" at the time of the bid submittal. On May 24, 1988, the date of the bid opening, Petitioner's building did not meet the requirements of an existing building as defined within the bid documents or the Department's verbal clarification of the definition. The building did not have a roof, a slab, or a valid building permit. After the bids were opened, the District VIII Bid Evaluation Committee visited each of the proposed lease locations. When the Petitioner's proposed location was reviewed by the committee two days after the close of bids, the addition was found to consist of the following: two partially completed block walls which connected the two existing buildings. The existing buildings were still intact, but it was apparent that an expansion was taking place, and that the completed project would be one building. A slab had not yet been poured in the addition, and it was without a roof. The plans submitted to the Department with the Petitioner's bid suggested that this expansion was capable of producing the square footage required by the Department. The City of Clewiston was aware of the Petitioner's expansion project, but he was not required by this authority to have a building permit at the time the project was viewed by the committee and evaluated by the Department. The Petitioner's bid was rejected by the Department because, on the date of the bid submittal, the proposed addition was not an "existing building" as defined by the bid documents and the further verbal interpretation by the agency. The bid submitted by the Intervenor Tibbetts did not contain the complete contract for the purchase of the property. However, the right to purchase was evidenced by a document submitted with the bid. Full Disclosure Statements of Ownership are not required under Rule 13N-1.015, Florida Administrative Code, until after a bid is awarded. The property was not properly zoned at the time of the Intervenor Tibbetts' bid submittal.
