96-005852BID Executive Ventures vs. Department Of Health And Rehabilitative Services Status: Closed Recommended Order on Wednesday, April 30, 1997.

Summary: Petitioner failed to prove that rejection of all BIDs was improper.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EXECUTIVE VENTURES, )

)

Petitioner, )

)

vs. ) CASE NO. 96-5852BID

)

DEPARTMENT OF CHILDREN )

AND FAMILIES, f/k/a )

DEPARTMENT OF HEALTH AND )

REHABILITIATVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to Notice, a formal hearing was held in this case

before Larry J. Sartin, a duly designated Administrative Law

Judge of the Division of Administrative Hearings, on March 3,

1997. The hearing was conducted by video between Tallahassee,

Florida, and Orlando, Florida.

APPEARANCES

For Petitioner: Walter J. Smith, Esquire

SMITH, GRIMSLEY, BAUMAN, PINKERTON,

PETERMANN, SAXER, and WELLS

25 Walter Martin Road, Northeast

Post Office Box 2379

Fort Walton Beach, Florida 32549

For Respondent: Eric D. Dunlap

Assistant District Legal Counsel

Department of Children and Families

400 West Robinson Street, Suite S-1106

Orlando, Florida 32801

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent, the Department

of Children and Families, properly rejected all bids received on

an Invitation to Bid on Proposed Lease No. 590:2622.

PRELIMINARY STATEMENT

On or about September 13, 1996, Respondent, the Department

of Children and Families, f/k/a, the Department of Health and

Rehabilitative Services, rejected all bids solicited by it for a

proposed lease of approximately 27,000 square feet of office

space. On or about September 26, 1996, Petitioner, Executive

Ventures, filed a Protest challenging Respondent’s rejection of

all bids.

Petitioner’s Protest was filed with the Division of

Administrative Hearings on December 13, 1996 by a Notice of

Referral and Notice to Bidders. The matter was designated case

number 96-5852BID and was assigned to the undersigned.

The parties waived the requirement of Section 120.57(3)(e),

Florida Statutes, that the formal hearing be held within thirty

days of the filing of the Protest. The formal hearing was

scheduled for March 3, 1997.

The hearing was conducted by video conferencing. The

undersigned and Petitioner participated in the hearing from the

Department of Business and Professional Regulation, Northwood

Centre, Tallahassee, Florida. Respondent participated from the

Department of Management Services, Regional Service Center, Zora

Neale Hurston Building, Orlando, Florida.

Petitioner presented the testimony of Mary Goodman and

William Todd Schweitzer. Petitioner offered ten exhibits. They

were all accepted into evidence.

Respondent presented the testimony of Jim Birch, John

Stewart and William Philip Penley. Respondent offered twelve

exhibits. They were all accepted into evidence.

A transcript of the formal hearing was filed on March 17,

1997. The parties requested twenty days from the filing of the

transcript to prepare and file their proposed orders. Therefore,

the requirement of Section 120.57(3)(e), Florida Statutes, that

this Recommended Order be entered within thirty days of the

filing of the transcript was waived.

Proposed orders were required to be filed by the parties on

or before April 7, 1997. Petitioner and Respondent filed separate

proposed orders on April 7, 1997.

On March 24, 1997, Respondent filed a Motion for Attorney's

Fees and Costs. Pursuant to the motion, Respondent seeks an

award of attorneys' fees and costs pursuant to Section

120.595(1)(b), Florida Statutes. On April 24, 1997, Petitioner

filed a Motion to Dismiss or Abate Respondent's Motion for

Attorneys Fees and Costs. Pursuant to this motion, Petitioner

has requested that the motion for fees and costs filed by

Respondent be dismissed or abated pending entry of this

Recommended Order.

Section 120.595(1)(b), Florida Statutes (1996 Supp.),

provides that a final order in a proceeding entered pursuant to

Section 120.57(1), Florida Statutes, may award attorney's fees

and costs to a "prevailing party" if "the nonprevailing adverse

party has been determined by the administrative law judge to have

participated in the proceeding for an improper purpose." The

determination of whether a nonprevailing party participated in a

proceeding for an "improper purpose" is required to be made by

the administrative law judge. Section 120.595(1)(c), Florida

Statutes. Any such determination must be included in the

Recommended Order. Section 120.595(1)(d), Florida Statutes.

The terms "improper purpose", "costs", and "nonprevailing

adverse party" are defined in Section 120.595(1)(e), Florida

Statutes. "Improper purpose" is defined as follows:

1. "Improper purpose means participation in

a proceeding pursuant to s. 120.57(1)

primarily to harass or to cause unnecessary

delay or for frivolous purpose or to

needlessly increase the cost of licensing or

securing the approval of an activity.

Based upon the foregoing, Petitioner's Motion to Dismiss or

Abate Respondent's Motion for Attorney's Fees and Costs is hereby

denied. Petitioner may, however, file a response to Petitioner's

Motion for the record on this matter within fifteen days of the

entry of the Recommended Order. Based upon consideration of the

record in this proceeding and the arguments of Respondent, it is

concluded that Petitioner did not institute this proceeding for

an "improper purpose". Accordingly, Respondent's Motion for

Attorney's Fees and Costs is denied.

FINDINGS OF FACT

A. The Existing Lease and the Decision to Look for New

Space .

1. District 7 of the Respondent, the Department of Children

and Families (at all times relevant to this proceeding, the

Department of Children and Families was known as the Department

of Health and Rehabilitative Services)(hereinafter referred to as

the “District”), leases approximately 26,955 spare feet of office

space located in Palm Bay, Brevard County, Florida. The space is

used as a client service center.

2. Pursuant to the District’s current lease, the lease will

expire on April 30, 1997. The current lease (hereinafter

referred to as the “Existing Lease”) was still in effect at the

time of the formal hearing of this matter.

3. The Existing Lease also provides for a five-year

renewal. For the first two years of the renewal period, the

Existing Lease provides for a rental rate of $11.50 per square

foot. For the third and fourth years of the renewal the rate is

$11.75 and for the last year, $12.00.

4. In June of 1995, the District submitted a Letter of

Agency Staffing (hereinafter referred to as a “LAS”) and a

Request for Prior Approval of Space Need (hereinafter referred to

as a “RSN”), to the Department of Management Services.

5. Pursuant to the LAS and RSN, the District sought

approval from the Department of Management Services to seek a new

lease of 26,872 square feet of office space in Palm Bay.

6. The reasons given for seeking approval of a new lease

set out in the RSN were as follows:

New Service Center in Brevard County(Palm Bay

Area). The existing lease is up! 4/30/97.

The current space does not adequately provide

for : (1) Secured storage, visitation areas,

and case file storage.

7. The June of 1995, RSN was approved. The District,

however, did not immediately seek the approved space. The

evidence failed to prove why.

8. In July of 1996 the District submitted another Request

for Space Need (hereinafter referred to as the “Second RSN”). The

same amount of space was sought and the same justification for

seeking new space was described in the Second RSN.

9. The Second RSN was approved by the Department of

Management Services on or about July 8, 1996.

10. The RSN and the Second RSN were prepared by Jim Birch.

Mr. Birch is the District’s Facilities Services Manager. The

reason for seeking a new lease set out in the RSN and the Second

RSN was provided to Mr. Birch by Bill Rawlings and Philip Penley.

Mr. Penley is the District’s Sub-District Administrator for

Brevard County. Mr. Rawlings is the Program Administrator for

Brevard County.

11. The Existing Lease was first entered into in 1977. The

amount of space leased has increased over the years and is

located in more than one building. Mr. Penley decided to request

approval to seek new space in the hopes that the client service

center in Palm Bay could be moved under one roof and in the hopes

that more ideal space could be obtained.

12. The representation in the RSN and the Second RSN that

the existing space “does not adequately provide for: (1) Secured

storage, visitation areas, and case file storage” is misleading

and incorrect. The programs located in the existing space in Palm

Bay can, in fact, be carried out without relocating.

B. The Invitation to Bid .

13. The District released an Invitation to Bid (hereinafter

referred to as the “ITB”), between July 16 and July 19, 1996.

14. The ITB provided that the “Project Contact Person” was

Mr. Birch.

15. The ITB sought bids on proposed lease number 590:2622,

for approximately 26,872 square feet of office space in an

existing building.

16. The ITB sought office space in Palm Bay. The building

was to be used as the District’s client service center.

17. The term of the lease was to be ten years with five

one-year optional renewal periods.

18. The ITB scheduled a pre-bid meeting for August 8, 1996.

Attendance at the meeting was not mandatory. The ITB specified,

however, that “information and explanations provided at this

meeting must be complied with by the bidder . . . .”

19. A representative of Petitioner, Executive Ventures

(hereinafter referred to as “Executive”), attended the pre-bid

meeting on August 8, 1996. During that meeting, the lessor under

the Existing Lease asked questions about the renewal terms of the

Existing Lease. Executive’s representative informed Executive of

the discussions soon after the meeting. Executive was, therefore,

aware of the existence of the Existing Lease and the fact that it

could be renewed prior to submitting a bid in response to the

ITB.

20. The ITB provided that bids could be submitted at any

time up to 10:00 a.m., September 12, 1996. Bids were to be opened

at the close of the bidding period.

21. The ITB provided that all bids received were to be

evaluated first for technical responsiveness. Nonresponsive bids

were to be withdrawn from further consideration.

22. Responsive bids were to be presented to a bid

evaluation committee “for comparison and formulation of a

recommendation for award.”

23. The ITB informed potential bidders that the District

reserved the right to reject all bids received in response to the

ITB. The first page of the ITB provides that “[t]he Florida

Department of [Children and Families] reserves the right to

reject any and all bids and award to the bid judged to be in the

best interest of the state.”

24. At page A1-5-8 of the ITB the following is provided

concerning the rejection of bids:

REJECTION OF BIDS

1. The department reserves the right to

reject any and all bids when such rejection

is in the interest of the State of Florida .

Such rejection shall not be arbitrary, but be

based on strong justification which shall be

communicated to each rejected bidder by

certified mail. [Emphasis in original].

. . . .

C. Bids Submitted in Response to the ITB .

25. A total of four bids were submitted in response to the

ITB.

26. The bids were opened on September 12, 1996. A bid

tabulation sheet was prepared by Mr. Birch. The annual rental

rates per square foot for the ten years of the lease were

included on the tabulation as required by the ITB. Pursuant to

the ITB, no other information was provided at the time the bids

were opened and tabulated

27. Executive submitted one of the four bids. Executive’s

bid consisted of 90 to 100 pages. Executive expended a good deal

of effort and incurred expenses in the amount of approximately

$17,000.00 in preparing its bid. The suggestion that Executive

incurred unnecessary expenses is not supported by the weight of

the evidence.

28. The rental rates per square foot bid by Executive for

the term of the proposed leased are as follows:

Year Rate

1 $14.56

2 15.00

3 15.53

4 16.08

5 16.73

6 17.40

7 18.10

8 19.01

9 19.96

10 20.96

D. The District’s Decision to Reject All Bids .

29. Mr. Birch had expected to receive rental rate bids in

the range of $12.00 to $13.00. Mr. Birch’s expectation was based

upon what he had been told to expect by John Stewart and Mr.

Penley. Mr. Stewart is the District’s General Service Manager.

Upon tabulating the bids, Mr. Birch discovered that the bids were

higher than expected. He realized that the bids were $3.00 per

square foot higher than the Existing Lease. Mr. Birch contacted

Mr. Stewart and informed him of the difference in rates.

30. Mr. Stewart informed Mr. Penley of the rates that had

been bid. Mr. Penley informed Mr. Stewart that the bid rates were

too high. Mr. Stewart then informed Sid McAlister, the Deputy

District Administrator, and Paul Sneed. Mr. McAlister and Mr.

Sneed told Mr. Stewart that the rates bid were excessive.

31. Mr. Stewart subsequently directed Mr. Birch to notify

the bidders that all bids were being rejected.

32. Had the bids received in response to the ITB been

accepted, the District would have been required to pay an

additional approximately $80,000.00 in rent during the first year

of the lease. The amount of rent required in the second year

would be in excess of $80,000.00.

33. The decision to reject all bids was based upon a

realization of the impact the rates contained in the bids would

have on the District’s budget if the lowest bid were accepted in

relation to the impact on the District’s budget of the rates of

the Existing Lease. The District realized that the increase in

rent would have a substantial negative impact on its budget.

34. It was also suggested that the impact on the District’s

budget as a result of the newly enacted Federal “Welfare Reform

Act” was also considered. In particular, the impact of the

Welfare Reform Act’s “Work and Gaining Economic Self Sufficiency”

or “WAGES” program was considered.

35. The Welfare Reform Act and, consequently WAGES, was

signed into law in August of 1996. WAGES was effective October 1,

1996. Among other things, WAGES establishes time limits for the

District’s clients' receipt of cash benefits. It also results in

the integration of programs of the District and the Department of

Labor. This integration of programs will have impacts on the

District’s space needs, staffing levels and the ability to pay

rental rates in the future.

36. Mr. Penley was aware of WAGES. It was suggested that at

the time the ITB was issued little was known about the impact on

the District that WAGES would have and that it was not until the

bids were received that Mr. Penley had sufficient information

concerning WAGES to be concerned about the impact of WAGES on the

District’s budget.

37. The weight of the evidence in this case failed to prove

that when the decision of the District to reject all bids was

made that the decision was based upon WAGES. While the impact of

WAGES was of greater concern at the time of the formal hearing,

the evidence failed to prove that the District’s concern about

WAGES as explained at the formal hearing was taken into account

at the time the bids were rejected.

E. Notice of the District’s Decision to Reject All

Bids .

38. On September 13, 1996, the day after the bids were

opened, the District sent a letter to Executive and the other

bidders informing them of the decision to reject all bids:

This is to give notice that in the best

interest of the State of Florida and the

Department of [Children and Families], that

any and all bids are hereby rejected.

The letter was signed by Mr. Birch.

39. The letter informing Executive of the decision was sent

by certified mail.

40. “Strong justification” for the rejection was not

“communicated to each rejected bidder by certified mail.”

41. After receiving the September 13, 1996 rejection

letter, Executive was informed during a telephone call with Mr.

Birch that all bids had been rejected due to excessive rental

rates and budgetary constraints.

42. The District failed to comply with the requirement of

the ITB that it inform bidders by certified mail of the reason

why it rejected all bids. The appropriate remedy for this error,

however, would not be to require that the District now evaluate

the bids. The appropriate remedy for the error would be to

require that the District send out a corrected notice by

certified mail containing the explanation of the reasons for

rejecting the bids required by the ITB. This remedy would only be

appropriate, however, if Executive had sought such a remedy AND

the evidence had proved that Executive had been prejudiced by the

failure to provide the explanation of the District’s

justification for rejecting all bids contemplated by the ITB.

Evidence to support such a finding was not presented. In fact,

the evidence proved that Executive was not prejudiced by the

District’s error. Executive was given additional information

concerning the bid rejection during a telephone conversation and

it had an opportunity to explore the reasons for the rejection

through discovery prior to the formal hearing of this case.

Executive, therefore, had the opportunity to determine the

specific justification for the rejection in preparation for the

hearing on this matter.

F. Zone Rates .

43. The Department of Management Services establishes

maximum rental rates which agencies can agree to pay without

obtaining approval of the Department of Management Services. The

rates are established for geographic zones on what is referred to

as a “Zone Rate Schedule”.

44. Zone Rate Schedules may be obtained from the Department

of Management Services or other agencies by potential bidders. At

all times relevant to this proceeding Executive was aware of the

Zone Rate Schedule applicable to Palm Bay.

45. Rental rates which do not exceed the zone rate by more

than 10% may be accepted by an agency without further approval

from the Department of Management Services. Any rate in excess of

10% over the zone rate must be approved by the Department of

Management Services before an agency may accept it.

46. The rental rates submitted by Executive in response to

the ITB exceeded the zone rate but not by more than 10%.

47. Individuals involved with the District’s decision in

this matter either were not aware of the Zone Rate Schedule or

gave it no consideration in deciding to reject all bids.

48. The evidence also failed to prove that agreeing to pay

a rate included on a Zone Rate Schedule for which approval from

the Department of Management Services need not be obtained is

necessarily in the “best interest of the state”.

49. Additionally, the evidence failed to prove that the

District did not have a reasonable basis for rejecting all bids

despite the fact that the rates bid by Executive were within the

Zone Rate Schedule plus 10%.

G. Executive’s Challenge .

50. Executive filed a Protest dated September 25, 1996,

challenging as arbitrary the Department’s decision to reject all

bids.

51. In its Protest Executive alleged the following “facts”

in support of its argument that the District’s rejection of all

bids was arbitrary:

a. The District failed to “communicate to each rejected

bidder any justification whatsoever for rejecting any and all

bids.”

b. The District had decided to “reject any and all bids if

the bid rental per square foot exceeded the rental they were

paying under their present Lease, since such Lease had an option

to renew for an additional five years. The present Lease renewal

failed to comply with the requirements and specifications set

forth in the Invitation to Bid.”

c. The District, “at all times, knew that if such bids

exceeded the square foot rental of the present Lease, that they

intended to reject all bids and renew the existing Lease,

although the existing Lease failed to meet the bid

specifications.”

d. The District “violated the competitive bidding procedure

by failing to include in their Invitation to Bid a provision that

any bid exceeding a specific dollar amount per square foot would

be rejected in favor of the existing Lease. . . .”

52. Although the evidence proved the first fact cited in

finding of fact 51, that fact does not support a conclusion that

the District’s decision was arbitrary.

53. As to the other facts alleged by Executive in its

Protest cited in finding of fact 53, the evidence simply failed

to prove those alleged facts.

54. At hearing, Executive presented the testimony of Mary

Goodman, a consultant and former Chief of the Bureau of Property

Management, Department of Management Services. Ms. Goodman was

accepted as an expert witness. Ms. Goodman opined that the

District’s actions in this matter were arbitrary.

55. Ms. Goodman’s opinion was based in part on her

conclusion that the submittal of the RSN and the Second RSN

constituted a “determination by the Department to not renew the

existing lease.” The evidence failed to support this contention.

Executive has failed to cite any provision of Florida law which

supports this contention.

56. Ms. Goodman also based her opinion on the assumption

that the District had established a rental rate cap which it

failed to inform prospective bidders of. The evidence failed to

support this assumption.

57. Ms. Goodman also based her opinion on the fact that the

bid submitted by Executive was within the Zone Rate Schedule for

the area. The evidence in this case failed to prove that the fact

that the bids were within 10% of the Zone Rate Schedule rates

means that the decision to reject bids that would have cost the

District approximately $80,000.00 the first year in additional

rent was arbitrary because the rental bids did not require

approval of the Department of Management Services. Executive has

cited no provision of Florida law that requires agencies to

accept bids simple because they do not require approval from the

Department of Management Services.

58. Ms. Goodman also based her opinion on her conclusion

that the District should have known of its budgetary constraints

before issuance of the ITB. Ms. Goodman, however, acknowledged

that she knew nothing specifically about the District’s budget.

59. Finally, Ms. Goodman based her opinion on the

District’s failure to provide the notice of the District’s reason

for rejecting the bids required by the ITB. As discussed, supra ,

the evidence failed to support this conclusion.

60. The evidence failed to prove that Executive filed the

action for an improper purpose.

CONCLUSIONS OF LAW

A. Jurisdiction and Burden of Proof .

61. The Division of Administrative Hearings has

jurisdiction of the parties to, and the subject matter of, this

proceeding. Section 120.57, Florida Statutes (1996 Supp.).

62. The burden of proof in this proceeding was on Executive

to prove that the District’s decision to reject all bids was

“illegal, arbitrary, dishonest, or fraudulent.” Section

120.57(3)(f), Florida Statutes (1996 Supp.)

B. Authority to Rejection of All Bids .

63. The ITB informed all bidders that the District had the

specific authority to reject all bids if rejecting all bids was

determined to be “in the best interest of the state.” Similar

authority for the rejection of bids is provided in Rule 10-

13.012, Florida Administrative Code.

64. The right to reject bids described in the ITB is

consistent with the rules of the Department of Management

Services. Rule 60H-1.029, Florida Administrative Code, provides

for the rejection of all bids when such rejection is in the best

interest of the state or due to an agency’s budgetary

constraints.

65. The ITB provided, however, that any decision to reject

all bids would “not be arbitrary, but [would] be based on strong

justification . . . .”

66. At issue in the proceeding is whether the District’s

decision to reject all bids was based upon a rational conclusion

that such action would be “in the best interest of the state”.

C. Lack of Adequate Notice .

67. Executive has alleged that the decision to reject all

bids was arbitrary because it “did not communicate in writing any

justification for the rejection.” Page 11 of Executive’s proposed

recommended order.

68. The evidence did prove that the District failed to give

the type of explanation of its reason for rejecting all bids

required by the ITB. This fact, however, does not support a

finding that the “rejection of all bids” was without

justification or that the decision was “arbitrary”. It simply

means that the bidders were not aware of why the District

rejected all bids at the time they received notice of the

District’s decision.

69. The District, however, did provide an explanation of

its justification for the rejection to Executive shortly after

sending out the notice of its decision to reject all bids.

Although that explanation was not as thorough as that provided

during the formal hearing of this case, it was consistent with

the District’s explanation at hearing.

70. Executive has failed to prove that the District’s error

in failing to provide the notice of its reason for rejecting all

bids is cause to require the District to now accept the bids.

D. The District’s Alleged Preconceived Decision to

Reject All Bids if Proposed Rental Rates Exceeded

the Rates Under the District’s Existing Lease .

71. Executive has alleged that the District decided prior

to the issuance of the ITB that it would reject all bids if it

did not receive a bid with a rental rate comparable to that it

could obtain by renewing the Existing Lease.

72. In support of this argument, Executive has suggested

that the reasons for seeking a new lease described in the RSN and

the Second RSN were known to be false and were included in the

RSN and the Second RSN so that the District could “shop for a

better or ideal building with the intent of exercising the option

to renew the existing lease, if the rental rate did not meet

their expectation.” Page 11 of Executive’s proposed recommended

order. Executive has suggested that the District always planned

on rejecting all bids if they were too much higher than the

Existing Lease. Executive has argued that the District,

therefore, violated the competitive bidding process by failing to

inform prospective bidders through the ITB that it would reject

all bids in favor of the Existing Lease if the bids exceeded a

certain amount.

73. The evidence in this case did prove that the

justification provided for seeking a new lease in the RSN and the

Second RSN was incorrect. In fact, the facilities occupied under

the Existing Lease are adequate, not “inadequate” as stated in

the RSN and the Second RSN. The evidence also proved that the

District was hoping that it would, by issuing an invitation to

bid, obtain a bid for a single, better facility.

74. The evidence failed to prove, however, that the

District conspired or made a conscientious decision to shop

around and then reject all bids received if those bids were at a

certain level above the existing lease. The evidence also failed

to prove that the District knew at all times that it would reject

all bids if they contained rates that exceeded the Existing Lease

by a certain amount. In fact, the evidence proved that the

District had expected rental rates bid under the ITB to be within

a range that was considerably lower than the lowest rates bid. No

evidence was offered in an effort to prove that the District did

not have such an expectation or that such an expectation was

unreasonable.

75. The factual basis for finding that the District should

have announced in the ITB that it would reject all bids if they

exceeded the Existing Lease by a certain amount was not proved.

76. Executive was aware of the Existing Lease and the fact

that it could be renewed. Executive should have known that, if

its bid exceeded what the District was paying by too much, it was

possible that the District would reject its bid. No law has been

cited by Executive that would require an agency to state the

obvious in an invitation to bid.

77. At best, the evidence in this case raised a question as

to whether the District should have ever issued the ITB. Even if

the District should not have issued the ITB, however, such a

conclusion would not require a finding that the District’s reason

for rejecting all bids was “arbitrary”.

E. Zone Rate Schedule .

78. Executive alleged that the fact that its bid was within

the Zone Rate Schedule for the area supports its contention that

the District’s decision was arbitrary. This argument is rejected.

79. The fact that the rental rates bid were within the Zone

Rate Schedule plus 10% only proved that the District was not

required to obtain permission to enter into a lease without

further approval from the Department of Management Services. This

fact fails to refute the evidence presented by the District about

its rationale for rejecting all bids. The unrefuted evidence in

this case proved that the lowest bid received by the District was

$3.00 per square foot more than the rental rate it is currently

paying. The evidence also proved that it would cost the state

approximately $80,000.00 more in rental expense the first year if

the District did not reject all bids.

80. Executive has cited no provision of Florida law that

requires an agency to accept a rental rate bid under an ITB

simply because it is under the level of rent for which an agency

is not required to seek Department of Management Services’

approval.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a Final Order be entered by the Department

of Children and Families dismissing the Protest filed by

Executive Ventures.

DONE and ORDERED this 30th day of April, 1997, in

Tallahassee, Florida.

___________________________________

LARRY J. SARTIN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Fl orida 32399-3060

488-9675 SUNCOM 278-9675

Fax Filing [phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 30th day of April, 1997.

COPIES FURNISHED:

Walter Smith, Esquire

SMITH, GRIMSLEY, BAUMAN,

PINKERTON, PETERMANN, SAXER, WELLS

Post Office Box 2379

Fort Walton Beach, Florida 32549

Eric D. Dunlap

Assistant District Legal Counsel

Department of Children and Families

400 West Robinson Street

Suite S-1106

Orlando, Florida 32801

Richard A. Doran

General Counsel

Department of Children & Families

Building 2 Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Gregory D. Venz, Agency Clerk

Department of Children & Families

Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 10

days from the date of this recommended order. Any exceptions to

this recommended order should be filed with the agency that will

issue the final order in this case.