08-003380BID Spinella Enterprises, Inc. vs. Department Of Environmental Protection Status: Closed Recommended Order on Thursday, October 2, 2008.

Summary: Respondent`s intended decision to reject all bids is arbitrary.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SPINELLA ENTERPRISES, INC., )

)

Petitioner, )

)

vs. ) Case No. 08-3380BID

)

DEPARTMENT OF ENVIRONMENTAL )

PROTECTION, )

)

Respondent. )

)

RECOMMENDED ORDER

This case came before Administrative Law Judge John G.

Van Laningham for final hearing by video teleconference on

August 7, 2008, at sites in Tallahassee and Lauderdale Lakes,

Florida.

APPEARANCES

For Petitioner: Cas Spinella

Spinella Enterprises, Inc.

2016 Sacramento

Weston, Florida 33326

For Respondent: Suzanne B. Brantley, Esquire

Department of Environmental Protection

The Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

STATEMENT OF THE ISSUE

The issue in this bid protest is whether Respondent acted arbitrarily when it decided to reject all of the bids it had

received in response to a solicitation seeking bids on a contract

for roof repairs.

PRELIMINARY STATEMENT

On January 10, 2008, the Florida Department of Environmental

Protection issued an Invitation to Bid, which sought competitive

bids from roofing contractors interested in performing roof

repairs on several buildings located in a state park. After

opening the bids on February 12, 2008, the Department determined

that Petitioner Spinella Enterprises, Inc., had quoted the lowest

price for the work. A notice of intent to award a contract to

Spinella Enterprises was posted on February 19, 2008.

Thereafter, a disappointed bidder initiated a protest. On

May 16, 2008, while this first protest was pending, the

Department gave notice of its intent to reject all bids and start

over. Spinella Enterprises timely protested the decision to

abort the instant procurement.

The Department referred the matter to the Division of

Administrative Hearings ("DOAH") on July 10, 2008. The final

hearing took place as scheduled on August 7, 2008. At the

hearing, Spinella Enterprises presented the testimony of its

president, Cas Spinella, and offered Petitioner's Exhibits 1 and

2, which were received in evidence. During its case, the

Department called Michael Renard, the project administrator, as a

witness. The Department also offered Respondent's Exhibits 1-3,

5-8, and 10, which were admitted.

The final hearing transcript was filed on September 4, 2008.

The Department timely filed a Proposed Recommended Order ahead of

the established deadline, which was September 15, 2008. Spinella

Enterprises did not submit a Proposed Recommended Order.

Unless otherwise indicated, citations to the Florida

Statutes refer to the 2008 Florida Statutes.

FINDINGS OF FACT

1. On January 10, 2008, the Florida Department of

Environmental Protection (the "Department" or "DEP") issued an

Invitation to Bid (the "ITB"), the purpose of which was to

solicit competitive bids from qualified contractors on a project

whose scope of work envisioned repairs to the wind-damaged roofs

of several buildings located on the grounds of the Hugh Taylor

Birch State Park in Fort Lauderdale, Florida.

2. Some of the buildings to be repaired were single-family

residences. Work on these structures accordingly needed to

conform to the requirements prescribed in the 2007 Manual of

Hurricane Mitigation Retrofits for Existing Site-Built Single

Family Residential Structures (the "Manual"), which the Florida

Building Commission (the "Commission"), following an explicit

legislative directive, see Section 553.844(3), Florida Statutes, 1

recently had adopted, by incorporative reference, as a rule. See

Fla. Admin. Code R. 9B-3.0475 (2007). 2 The Rule had taken effect

on November 14, 2007, giving the Manual's contents the same

status and force as the Florida Building Code. Id.

3. Just before the Department issued the ITB, the

Commission had approved, at a meeting on January 8, 2008, a

modified version of the Manual, which it called the 2007 Manual

of Hurricane Mitigation Retrofits for Existing Site-Built Single

Family Residential Structures, Version 2 (the "Revised Manual").

4. In consequence of the Commission's approval of the

Revised Manual, the Florida Department of Community Affairs

("DCA") caused a Notice of Proposed Rule Development to be

published on January 25, 2008, in the Florida Administrative

Weekly . This official advertisement announced that the

Commission intended to amend Rule 9B-3.0475, so that its

incorporative reference would mention the Revision Manual instead

of the Manual. See 34 Fla. Admin. W. 461-62 (Jan. 25, 2008). 3

5. DCA caused a Notice of Proposed Rule respecting the

intended revision of Rule 9B-3.0475 to be published on

February 1, 2008, in the Florida Administrative Weekly . See 34

Fla. Admin. W. 605 (Feb. 1, 2008). 4

6. On February 5, 2008, the Department issued Addendum

No. 4 to the ITB (the "Addendum"). The Addendum provided in

pertinent part as follows:

Bidders shall bid the project as specified

despite the recent change in Rule 9B-3.0475

relating to hurricane mitigation retrofits.

Any additional water barrier will be

accomplished by Change Order after award of

the contract.

(The foregoing provisions of the Addendum will be referred to

hereinafter as the "Directive").

7. On February 12, 2008, the Department opened the bids it

had received in response to the ITB. Ten (out of 12) of the bids

submitted were deemed responsive. The bid of Petitioner Spinella

Enterprises, Inc. ("Spinella") was one of the acceptable bids.

8. On February 19, 2008, DEP posted notice of its intent to

award a contract to the lowest bidder, namely Spinella, which had

offered to perform the work for $94,150.

9. The second lowest bidder was The Bookhardt Group

("Bookhardt"). Bookhardt timely protested the intended award,

raising several objections, only one of which is relevant here.

In its formal written protest, dated March 3, 2008, Bookhardt

alleged that "[t]he new State of Florida law F.S. 553.844 was not

part of the solicitation."

10. On April 4, 2008, Rule 9B-3.0475, as amended to

incorporate by reference the Revised Manual, took effect. See

Fla. Admin. Code R. 9B-3.0475 (2008).

11. On May 16, 2008, DEP posted notice of its intent to

reject all bids received in response to the ITB. (Bookhardt's

protest, which remained pending, had never been referred to DOAH

for a formal hearing.) Spinella timely protested the

Department's decision to reject all bids.

12. In an email sent to Spinella on July 22, 2008, DEP's

counsel explained the rationale behind the decision:

The reason the Department rejected all bids

follows. When the Department posted the

notice of intent to award the contract to

Spinella Enterprises, Inc., the second low

bidder (Bookhardt Roofing) protested the

intent to award. The second low bidder's

basis for protesting the intended award was

that Addendum 4 directed bidders to ignore

certain rules of the Construction Industry

Licensing Board [ sic ], which had become

effective after the bid opening, which was

not in accordance with the law. As a result,

this may have caused confusion and the

Department had no assurance that bidders were

bidding the project correctly. In addition,

the statement in Addendum 4 that the

Department would add the required moisture

barrier afterward by change order set up a

situation where bidders had no idea how much

the Department would be willing to pay for

the change order. Further, the moisture

barrier was not the only thing required by

the new rules. Potential bidders may not

have bid due to these uncertainties. The

Department agreed with Bookhardt's assertions

and rejected all bids . . . .

13. Notwithstanding Spinella's protest, the Department

issued a second invitation to bid on the project in question. As

of the final hearing, the bids received in response to this

second solicitation were scheduled to be opened on August 12,

2008.

Ultimate Factual Determinations

14. The Department's decision to reject all bids is

premised, ultimately, on the notion that the Directive told

prospective bidders to ignore an applicable rule in preparing

their respective bids. 5 If this were true, then the Directive

could have been a source of potential confusion, as the

Department argues, because a prudent bidder might reasonably

hesitate to quote a price based on (possibly) legally deficient

specifications.

15. The Directive, however, did not instruct bidders to

ignore an applicable, existing rule. Rather, under any

reasonable interpretation, it instructed bidders to ignore a

proposed rule and follow existing law. Such an instruction was

neither confusing nor inappropriate.

16. To be sure, the first sentence of the Directive——at

least when read literally——misstated a fact. It did so by

expressing an underlying assumption, i.e. that Rule 9B-3.0475

recently had been changed, which was incorrect. In fact, as of

February 5, 2008, the Rule was exactly the same as it had always

been. (It would remain that way for the next two months, until

April 6, 2008). 6 DEP's misstatement about the Rule might,

conceivably, have confused a potential bidder, at least

momentarily. But DEP did not factor the potential for such

confusion into its decision to reject all bids, and no evidence

of any confusion in this regard was offered at hearing. 7

17. More important is that the unambiguous thrust of the

Directive was to tell bidders to rely upon the "not recently

changed" Rule 9B-3.0475, which could only have meant Florida

Administrative Code Rule 9B-3.0475 (2007) as originally adopted,

because that was the one and only version of the Rule which, to

that point, had ever existed. Thus, even if the Department were

operating under the mistaken belief, when it issued the Addendum,

that Rule 9B-3.0475 recently had been amended; and even if, as a

result, DEP thought it was telling prospective bidders to ignore

an applicable , existing rule, DEP nevertheless made clear its

intention that prospective bidders follow the original Rule 9B-

3.0475, which was in fact the operative Rule at the time, whether

or not DEP knew it.

18. Indeed, as any reasonable potential bidder knew or

should have known at the time of the Addendum, (a) the Commission

recently had approved the Revised Manual, but the contents

thereof would not have the force and effect of law unless and

until the Revised Manual were adopted as a rule, which had not

yet happened; (b) the Commission had initiated rulemaking to

amend Rule 9B-3.0475 so as to adopt the Revised Manual as a rule,

but the process was pending, not complete ; (c) Rule 9B-3.0475 had

not been amended, ever; and, therefore, (d) the Manual still had

the force and effect of law. See endnote 6. The Directive

obviously could not alter or affect these objective facts.

19. At bottom, then, a reasonable bidder, reviewing the

Directive, would (or should) have concluded either (a) that the

"recent change" which DEP had in mind was the Commission's

approval of the Revised Manual (or the subsequent announcement of

the proposed amendment to Rule 9B-3.0475) or (b) that DEP

mistakenly believed the Rule had been changed, even though it had

not been. Either way, a reasonable bidder would (or should) have

known that the Department wanted bidders to prepare their

respective bids based not on the Revised Manual, but the Manual.

In other words, regardless of what DEP subjectively thought was

the existing law, DEP clearly intended (and unambiguously

expressed its intent) that bidders follow what was, in fact,

existing law. This could not have confused a reasonable bidder

because, absent an instruction to exceed the minimum required

legal standards (which the Directive was not), a reasonable

bidder would have followed existing law in preparing its bid,

just as the Directive required.

20. Once it is determined that the Directive did not, in

fact, instruct bidders to ignore an applicable, existing law, but

rather told them to rely upon the applicable, existing law

(notwithstanding that such law might change in the foreseeable

future), the logic underlying the Department's decision to reject

all bids unravels. Simply put, there is no genuine basis in

logic or fact for concluding that the Addendum caused confusion.

21. The other grounds that DEP has put forward do not hold

water either. Contrary to the Department's contention, the

possibility that a Change Order would be necessary if an

"additional water barrier" were required could not possibly have

confused potential bidders or caused them to be uncertain about

how much money the Department would be willing to pay for such

extra work. This is because Article 27 of the Construction

Contract prescribes the procedure for entering into a Change

Order, and it specifies the method for determining the price of

any extra work. See ITB at 102-05.

22. The fact that the proposed amendment to Rule 9B-3.0475,

if it were to be adopted and become applicable to the instant

project, might require other additional work, besides a water

barrier, likewise could not reasonably have caused potential

bidders to refrain from bidding, for the same reason: The

Construction Contract contains explicit provisions which deal

with the contingency of extra work or changes in the work. Id.

23. In sum, DEP's intended decision to reject all bids

cannot be justified by any analysis that a reasonable person

would use to reach a decision of similar importance. It is,

therefore, arbitrary.

CONCLUSIONS OF LAW

24. DOAH has personal and subject matter jurisdiction in

this proceeding pursuant to Sections 120.569 and 120.57(1),

Florida Statutes, and the parties have standing.

25. Section 120.57(3)(f), Florida Statutes, provides that

in a proceeding brought to protest the intended rejection of all

competitive proposals, the standard of review shall be whether

the proposed agency action is "illegal, arbitrary, dishonest or

fraudulent." This standard derives from Department of Transp. v.

Groves-Watkins Constructors , 530 So. 2d 912, 914 (Fla. 1988), a

case in which the Florida Supreme Court held that the

administrative law judge's "sole responsibility [in reviewing a

decision to reject all bids] is to ascertain whether the agency

acted fraudulently, arbitrarily, illegally or dishonestly." (The

parties here stipulated that the Department had not acted

fraudulently, illegally, or dishonestly, leaving only the

question of whether the Department's intended decision is

arbitrary.)

26. The burden of proof rests with the party opposing the

proposed agency action. See State Contracting and Engineering

Corp. v. Department of Transp. , 709 So. 2d 607, 609 (Fla. 1st DCA

1998). As the protesting party, Spinella must sustain its burden

of proof by a preponderance of the evidence. Department of

Transp. v. J.W.C. Co., Inc ., 396 So. 2d 778, 787 (Fla. 1st DCA

1981).

27. In Scientific Games, Inc. v. Dittler Brothers, Inc .,

586 So. 2d 1128, 1131 (Fla. 1st DCA 1991), the First District

Court of Appeal described the deference to be accorded an agency

in connection with a competitive procurement:

The Hearing Officer need not, in effect,

second guess the members of the evaluation

committee to determine whether he and/or

other reasonable and well-informed persons

might have reached a contrary result.

Rather, a "public body has wide discretion "

in the bidding process and "its discretion,

when based on an honest exercise" of the

discretion, should not be overturned "even if

it may appear erroneous and even if reasonable persons

may disagree."

(Citations omitted; emphasis in original).

28. In Gulf Real Props., Inc. v. Department of Health and

Rehabilitative Servs. , 687 So. 2d 1336, 1338 (Fla. 1st DCA 1997),

the court upheld an agency's intended rejection of all bids,

stating that "an agency's rejection of all bids must stand,

absent a showing that the 'purpose or effect of the rejection is

to defeat the object and integrity of competitive bidding.'"

29. An arbitrary decision is one that is not supported by

facts or logic, or is despotic. Agrico Chemical Co. v.

Department of Environmental Regulation , 365 So. 2d 759, 763 (Fla.

1st DCA 1978). Under the arbitrary and capricious standard, "an

agency is to be subjected only to the most rudimentary command of

rationality. The reviewing court is not authorized to examine

whether the agency's empirical conclusions have support in

substantial evidence." Adam Smith Enterprises, Inc. v. State

Dep't of Environmental Regulation , 553 So. 2d 1260, 1273 (Fla.

1st DCA 1989). Still,

the reviewing court must consider whether the

agency: (1) has considered all relevant

factors; (2) has given actual, good faith

consideration to those factors; and (3) has

used reason rather than whim to progress from

consideration of each of these factors to its

final decision.

Id.

30. The second district has supplied the following test for

determining whether a decision was arbitrary: "If an

administrative decision is justifiable under any analysis that a

reasonable person would use to reach a decision of similar

importance, it would seem that the decision is neither arbitrary

nor capricious." Dravo Basic Materials Co., Inc. v. State Dep't

of Transportation , 602 So. 2d 632, 634 n.3 (Fla. 2d DCA 1992).

As the court observed, this "is usually a fact-intensive

determination." Id. at 634.

31. To summarize, in reviewing an agency's intended

decision to reject all bids, the administrative law judge must

give substantial deference to the agency's determination, owing

to its wide discretion in procurement matters. There is an

appreciable difference, however, between according the respect

that deference entails and affixing the rubber stamp.

32. As set forth in the preceding Findings of Fact, the

undersigned has determined as matter of ultimate fact that the

Department's intended decision is arbitrary. The rationale

behind this fact-intensive determination was given above. To the

extent any of the findings of fact herein are deemed to be legal

conclusions, such findings are hereby incorporated by reference

as if set forth in this Conclusions of Law section of the

Recommended Order and adopted as legal conclusions.

33. The facts of this case call to mind Caber Systems, Inc.

v. Department of General Services , 530 So. 2d 325 (Fla. 1st DCA

1988). In Caber , as here, the agency decided to reject all bids

after a disappointed bidder had protested the intended award.

Unlike this case, however, in Caber the administrative law judge

found, as a matter of fact, that the invitation to bid was

"seriously flawed in several respects." Id. at 331. Indeed, the

bid specifications were so ambiguous, a finding of fact was made

that the invitation to bid had failed clearly to reflect either

the agency's or anyone else's intent. Id. The court held that,

in view of the hopelessly ambiguous specifications, the agency's

rejection of all bids was neither arbitrary nor capricious, even

though the decision to pull the plug on the procurement had been

made while the first protest remained pending. Id. at 336.

34. In the instant case, the Addendum was not confusing,

ambiguous, or fatally flawed. Rather, although the Directive, as

written, incorrectly suggested that there had been a recent

change in Rule 9B-3.0475 (when in fact there recently had been

published only a proposed amendment to the Rule), it nevertheless

clearly and plainly stated DEP's intent that bidders follow the

applicable, existing law. Caber , therefore, is distinguishable

on this basis and hence inapposite. 8

35. One final issue remains to be discussed. At hearing,

DEP admitted that, notwithstanding Spinella's timely bid protest,

it already effectively had implemented its intended decision to

reject all bids by issuing another invitation to bid on the very

project at stake in this case; indeed, as of the final hearing,

bids submitted in response to the second solicitation were

expected to be opened within a matter of days. No evidence was

presented to establish that, before taking this action, the

agency head had set forth in writing particular facts and

circumstances demonstrating that the failure to proceed at once

with this procurement would present an immediate and serious

danger to the public. By pressing ahead with its efforts to let

the contract in question, DEP violated Section 120.57(3)(c),

Florida Statutes. 9

36. As Spinella argued at hearing, the Department's actions

threaten to make unavailable the administrative relief to which

Spinella otherwise would be entitled if his protest were

successful, namely final agency action awarding Spinella the

subject contract. The unavailability of administrative relief

would not make this case moot, however, because there are

judicial remedies available, such as injunctive or other

equitable relief, reliance damages, and the recovery of protest

costs, to rectify the losses caused by DEP's wrongful denial of

Spinella's bid. See Miami-Dade County Sch. Bd. v. J. Ruiz School

Bus Serv., Inc. , 874 So. 2d 59 (Fla. 3d DCA 2004).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Department enter a final order

finding that its decision to reject all bids was arbitrary.

Because the Department elected not to comply with the statutory

directive to abate this procurement pending the outcome of

Spinella's protest, with the result that the contract at issue

possibly has been awarded already to another bidder; and because

the choice of remedies for invalid procurement actions is

ultimately within the agency's discretion, the undersigned

declines to make a recommendation regarding the means by which

DEP should rectify the harm to Spinella, but he urges that other

appropriate relief be granted if Spinella cannot be awarded the

contact.

DONE AND ENTERED this 2nd day of October, 2008, in

Tallahassee, Leon County, Florida.

___________________________________

JOHN G. VAN LANINGHAM

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 2nd day of October, 2008.

ENDNOTES

1 / In pertinent part, the statute provides as follows:

[T]he Florida Building Commission shall

develop and adopt . . . measures [to

incorporate recognized mitigation techniques

for lessening the destructive effects of

hurricanes on site-built, single-family

residential structures constructed before the

implementation of the Florida Building Code]

by October 1, 2007, by rule separate from the

Florida Building Code, which take immediate

effect and shall incorporate such

requirements into the next edition of the

Florida Building Code.

§ 553.844(3), Fla. Stat.

2 / Florida Administrative Code Rule 9B-3.0475 (2007) provided as

follows:

The 2007 Manual of Hurricane Mitigation

Retrofits for Existing Site-Built Single

Family Residential Structures is hereby

adopted by reference. The manual provides

requirements for construction in addition to

those contained in the Florida Building Code

as adopted by Rule 9B-3.047, F.A.C., that

shall be enforced as provided in the manual

and as required by Section 553.844, F.S. A

copy of the manual may be obtained from the

Florida Building Commission’s website,

www.floridabuilding.org. If any person

encounters any difficulty utilizing the

website, assistance is available by calling

the Codes and Standards Unit at (850)487-

1824.

3 / The undersigned has taken official recognition of the public

announcement which appeared in the Florida Administrative Weekly .

4 / The undersigned has taken official recognition of the public

notice which appeared in the Florida Administrative Weekly .

5 / In her email of July 22, 2008, DEP's counsel asserted that

the Directive had instructed "bidders to ignore certain rules

. . . which had become effective after the bid opening, which was

not in accordance with the law." This statement implies that the

"certain rules" which were to be ignored were applicable rules

because, logically, there would be nothing problematic about

instructing bidders to ignore inapplicable rules. Yet, while the

statement acknowledges that the "certain rules" in question took

effect after the bid opening , it avoids mentioning that the

subject rules were, for that reason, not in effect (and thus not

applicable) at the time the Addendum was issued. The statement

thus seems designed to leave the impression that the Directive

referred to an applicable rule, even as it hints that such was

not the case.

Regardless, the Department's position makes sense only if

the Directive is understood as an instruction to ignore an

applicable, existing law. This is because, first, the Directive

actually told bidders (in so many words) to ignore the "recent

change in Rule 9B-3.0475"——language which suggested that the

"recent change" was already in effect. Second, if the Department

had meant merely to instruct bidders, through the Directive, to

ignore the recently proposed (but currently ineffective)

amendment to Rule 9B-3.0475, such an instruction would have been

fully in accord with the law, and should not have been confusing

to any reasonable bidder, even if the Department believed that

the proposed amendment likely would become effective after the

bid opening. (It is, of course, easy to imagine scenarios in

which compliance with a proposed amendment to the building code

would be impermissible. Suppose, for example, the Revised Manual

promised to relax certain standards found in the Manual. In that

event, builders would continue to be required to meet the more

stringent standards contained in the Manual until such time as

the Revised Manual were adopted as a rule.) Therefore, the

Department needs for the Directive to be understood as an

instruction to ignore applicable , existing law if its rationale

for rejecting all bids is to be deemed coherent.

6 / The law in this regard is clear and unambiguous. Section

120.54(1)(i)1., Fla. Stat. (2008), states:

A rule may incorporate material by reference

but only as the material exists on the date

the rule is adopted. For purposes of the

rule, changes in the material are not

effective unless the rule is amended to

incorporate the changes.

(Emphasis added.)

7 / It is debatable, moreover, whether such confusion would have

been reasonable. Article 16 of the Construction Contract

required a bidder to represent that it was "fully informed with

regard to all applicable local, state, and federal laws,

ordinances, rules, regulations, and codes (the 'Laws') governing

the Work . . . ." See ITB at 90. Any bidder who made this

representation in good faith would have known that Rule 9B-3.0475

had not been "recently changed" as of February 5, 2008.

8 / Because Caber is inapposite, the undersigned need not decide

here whether Caber should be revisited in light of subsequent

statutory changes. Of particular interest, however, is that,

some two years after Caber was decided, it became necessary to

bring a specifications protest within 72 hours after receipt of

the invitation to bid——or be deemed to have waived the right to

do so. Legislation enacted in 1990 inserted the following

a protest of the specifications contained in an invitation to bid

or in a request for proposals, the notice of protest shall be

filed in writing within 72 hours after the receipt of notice of

the project plans and specifications or intended project plans

and specifications in an invitation to bid or request for

proposals, and the formal written protest shall be filed within

10 days after the date the notice of protest is filed." Ch. 90-

302, Laws of Fla. This particular provision, which despite

undergoing some revisions over the years retains the same basic

meaning, is currently found in § 120.57(3)(b), Fla. Stat.

Given the requirement that specifications be protested

immediately——which was not the law at the time of Caber ——there is

now reason to view with some suspicion an agency's decision to

reject all bids on the basis of alleged problems with the

specifications when, as happened here, the purported deficiencies

have been brought to the agency's attention by the protest of a

disappointed bidder. The concern, of course, is that the agency

may have favored a preferred bidder by granting it relief on

grounds which the bidder, having failed to bring a timely

specifications protest, clearly had waived, and by doing so

effectively have circumvented the deadline that § 120.57(3)(b)

imposes.

9 / Section 120.57(3)(c), Fla. Stat., states:

Upon receipt of the formal written protest

that has been timely filed, the agency shall

stop the solicitation or contract award

process until the subject of the protest is

resolved by final agency action, unless the

agency head sets forth in writing particular

facts and circumstances which require the

continuance of the solicitation or contract

award process without delay in order to avoid

an immediate and serious danger to the public

health, safety, or welfare.

COPIES FURNISHED :

Cas Spinella

Spinella Enterprises, Inc.

2016 Sacramento

Weston, Florida 33326

Suzanne B. Brantley, Esquire

Department of Environmental Protection

The Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Michael W. Sole, Secretary

Department of Environmental Protection

The Douglas Building

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Tom Beason, General Counsel

Department of Environmental Protection

The Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Lea Crandall, Agency Clerk

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

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.