18-000371BID Tallahassee Corporate Center, Llc vs. Florida Fish And Wildlife Conservation Commission Status: Closed Recommended Order on Tuesday, March 27, 2018.

Summary: Petitioner did not demonstrate that the proposed agency action was clearly erroneous, contrary to competition or arbitrary and capricious.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TALLAHASSEE CORPORATE CENTER,

LLC,

Petitioner,

vs. Case No. 18 - 0371BID

FLORIDA FISH AND WILDLIFE

CONSERVATION COMMISSION,

Respondent,

and

NATHAN LEE HEAD OF TALLAHASSEE,

LLC,

Intervenor.

___________ ____________________/

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case

on February 19 and 20, 2018 , in Tallahasse e, Flor ida, before

Yolonda Y. Green , a duly - designated Administrative Law Judge of

the Division of Administrative Hearings (ÐDivisionÑ) .

APPEARANCES

For Petitioner: M. Stephen Turner, Esquire

David K. Miller, Esquire

John F. Loar, Esquire

Broad and Cassel , LLP

21 5 South Monroe Street , Suite 400

Tallahassee, Florida 32301

For Respondent : Eduardo S. Lombard, Esquire

Vezina, Lawrence and Piscitelli, P.A.

413 E ast Park Avenue

Tallahassee, Florida 32301

For Intervenor: M. Chris topher Bryant, Esquire

Segundo J. Fernandez , Esquire

Oertel, Fernandez, Bryant & Atkinson, P.A.

Post Office Box 1110

Tallahassee, Florida 32302 - 1110

STATEMENT OF THE ISSUE S

Whether the Florida Fish and Wildlife Conservation

Comm issionÓs ( ÐRespondentÑ or ÐFWCÑ) determination that

Tallahassee Corporate Center, LLC (ÐPetitionerÑ or ÐTCCÑ) ,

submitted a nonresponsive reply to FWCÓs Invitati on to

Negotiate (ÐITNÑ) No. 770 - 0235 is contrary to the CommissionÓs

governing statutes, the age ncyÓs rules or policies , or the

solicitation specifications; and , if so, whether it was clearly

erroneous, contrary to competition, arbitrary, or capricious.

PRELIMINARY STATEMENT

On July 19, 2017, Respondent , FWC, issued ITN No. 770 - 0235 ,

soliciting repli es for leased office space in Tallahassee,

Florida, with a lease term to begin November 1, 2019. Between

August 15, 2017, and November 2, 2017, FWC issued four a ddenda

to the ITN, which contained amendments, modifications, and

explanations to the ITN. On August 10, 2017, FWC issued

Addendum No. 1 to the ITN, which contained modifications and

explanations to the ITN in response to proposed vendor

questions. On August 15 , 2017, FWC issued Addendum No. 2 to the

ITN , whi ch contained amended answers and modif ications in

response to proposed vendor questions. On September 18, 2017,

FWC issued Addendum No. 3 to the ITN, which contained an

amendment to the revised bid opening location. On November 2,

2017, FWC issued Addendum No. 4 to the I T N, which contained a

revised calendar of events.

On December 11, 2017, FWC posted its Notice of Intent to

award the contract to Nathan Lee Head, LLC (ÐNLHÑ). On

December 11, 2017, Petitioner timely submitted its Notice of

I ntent to protest the Notice of Intent to a ward the c ontract .

On December 23, 2017, TCC timely filed its Formal Protest and

Petition for Formal Administrative Hearing. On January 19,

2018 , the Petition was referred to the Division for a final

hearing. NLH filed a Petition for Leave to Intervene, which was

granted.

On February 5, 2018, Petitioner filed a Motion to Amend the

Petition (ÐMotion to AmendÑ). On January 23, 2018, the

undersigned granted the Motion to Amend and ordered the hearing

to go forward based on the amended Petition .

Prior to the hear ing, the parties filed a Joint Pre - h earing

Statement , which included stipulated findings of fact that have

been incorporated into the Findings of Fact found below.

The undersigned issued a Notice of Hearing scheduling this

matter for February 19 and 20, 2018, and it commenced as

scheduled. At the final hearing, there were no joint exhibits

offered. However, each party offered Jon Creamer as a witness.

PetitionerÓs Exhibits 1 through 3, 12, 14, and 15 were admitted

without objection; and Exhibits 6 thro ugh 8 and 18 were

admitted over objection. PetitionerÓs Exhibit 5 was proffered ,

but not admitted into evidence . In addition to Mr. Creamer,

Petitioner presented the testimony of Todd Hakimi, vice -

p resident of TCC . RespondentÓs Exhibits 1, 2, and 4 were

admitted without objection; and Exhibit 3 was ad mitted over

objection. Interve norÓs Exhibit 1(a) - 1(e) was admitted over

objection.

The three - volume Official Transcript for the final hearing

was filed on February 23, 2018. The parties timely filed thei r

Proposed Recommended Orders, which have been considered in the

preparation of this Recommended Order.

FINDING S OF FACT

The following Findings of F act are based on exhibits

admitted into evidence, testimony offered by witnesses, and

admitted facts s et forth in the pre - hearing stipulation.

ITN No. 770 - 0235 and Background

1 . FWC is a state agency that seeks office space to be

occupied by personnel from six of FWCÓs divisions. FWC

currently leases office space from TCC , which expires in

October 20 19.

2 . On July 19, 2017, FWC issued ITN No. 770 - 0235, seeking

vendors that could provide 53,000 square feet of office s pace

for lease. FWC anticipates occupying the space by November 1,

2019. Between August 15, 2017, and November 2, 2017, FWC issued

four addenda to the ITN, which contained amendments,

modifications, and explanations to the ITN.

3 . There were no bidders that challenged the terms,

conditions, or specifications contained in the ITN or its

amendments .

4 . TCC and NLH were two of t he potential lessors that

submitted replies in response to the ITN.

5 . FWC seeks to lease either a buildin g that already exists

or a non - existing building to be constructed in the future. The

ITN describes the proposals requested as follows:

Competitiv e proposals may be submitted for

consideration under this Invitation to

Negotiate (ITN) for the lease of office space

in either an existing building or a non ȃ

existing (build ȃ to ȃ suit/turnkey) building.

NOTE: All buildings must comply with the

Americans w ith Disabilities Act (ADA) as

stated in Attachment A, Agency

Specifi cations, Section 6.D., page 32.

OPTION 1 ȃ an Ò existing Ó building : To be

considered an Ò existing Ó building, the

facility offered must be enclosed with a roof

system and exterior walls mus t be in place at

the time of the submittal of the Reply.

OPTION 2 ȃ a Ò non ȃ existing Ó building :

Offeror agrees to construct a building as a

Òbuild ȃ to ȃ suitÓ (turnkey) for lease to FWC.

6 . Each applicant that submitted a proposal in response to

the ITN w as required to meet the specification in Attachment A of

the ITN. T he ITN provides as follows :

FWC is seeking detailed and competitive

proposals to provide built ȃ out office

facilities and related infrastructure for the

occupancy by FWC. As relates to any space

that is required to be built ȃ out pursuant to

this Invitation to Negotiate in accordance

with this Invitation to Negotiate, see

Attachment Ò A Ó which includes the FWC

Specifications detailing the build - out

requirements.

7 . The specifications in Atta chment A provided the basic

requirements for the potential leased space such that proposals

offering existing or non - existing building may be compared and

evaluated together.

8 . The ITN included certain provisi ons to clarify the

rights contemplated by t he ITN , and included the following

disclaimer:

This ITN is an invitation to negotiate and is

for discussion purposes only. It is not an

offer, contract or agreement of any kind.

Neither FWC nor the Offeror/Lessor shall have

any legal rights or obligatio ns whatsoever

between them and neither shall take any

action or fail to take any action in reliance

upon any part of these discussions until the

proposed transaction and a definitive written

lease agre ement is approved in writing

by FWC.

This ITN shall n ot be considered an offer to

lease. The terms of any transaction, if

consummated, shall not be final nor binding

on either party until a Lease Agreement is

executed by all parties. This ITN may be

modified or withdrawn by FWC at any time.

9 . The ITN a lso included a provision expressly reserving

FWCÓs Ðright to negotiate with all responsive and responsible

Offerors, serially or concurrently, to determine t he best - suited

solution.Ñ The term Ð Offeror Ñ was defined by the ITN to mean

Ðthe individual submit ting a Reply to this Invitation to

Negotiate, such person being the owner of the proposed facility

or an individual duly authorized to bind the owner of the

facility.Ñ This reservation of rights placed interested lessors

on notice that only responsive les sors could be invited to

negotiations.

10 . While TCC and NLH were two of the potential lessors

that submitted replies in response to the ITN , the bidders

submitted different proposals. TCC submitted a proposal for an

existing building, and NLH submitte d a proposal for a non -

existing building.

11 . During an initi al review of all replies, FWC determined

TCCÓs reply to be nonresponsive based on TCCÓs response to

ITN section IV.G (Tenant Improvements) and a statement titled

ÐAdditional ResponseÑ that TCC s ubmitted with its reply. As a

result, FWC did not evaluate or score TCCÓs reply. After TCCÓs

reply was declared nonresponsive, there were no further

negotiation s with TCC regarding the ITN.

12 . NLHÓs reply passed the initial responsiveness review

and wa s then evaluated and scored by FWC. FWC ultimately issued

an intended award of the contract to NLH after conducting

negotiations.

Tenant - Improvement Cap

13 . The ITN prohibited vendors from proposing conditional

or contingent lease rates that included a tenant - improvement

cap, or allowance. A tenant - improvement cap reflects the

maximum amount the landlord is willing to spend to make

imp rovements to leased space. Mr. Hakimi asserted that the

tenant - improvement cap would be an incentive to FWC to enter a

lease . Ho wever, the tenant - improvement cap would also place a

limit on improvements.

14 . According to ITN section IV.E, any reply offering a

lease rate with a tenant - improvement cap would be deemed

nonresponsive :

FULL SERVICE (GROSS) RENTAL RATE

Th e Offeror shall provide FWC with a Full

Service (gross) lease structure. Therefore,

the lease rate must include base rent,

taxes, all operating expenses (including,

but not limited to, janitorial services and

supplies, utilities, water, insurance,

interio r and exterior maintenance, recycling

services, garbage disposal, pest control,

security system installation and

maintenance, and any amortization of

required tenant improvements to the proposed

space). There shall be no pass through of

additional expense s . . . . Offerors must

provide their best, firm lease rates. Lease

rates that are contingent, involve a basic

rate plus Ðcap Ñ or Ðrange Ñ for such things

as tenant improvements will be deemed

nonresponsive.

15 . The ITN also provided, in section IV.G, t hat any

current lessor must meet all ITN requirements, including those

set forth in ITN Attachment A :

TENANT IMPROVEMENTS

The State requires a Ðturn ȃ keyÑ build ȃ out by

the Landlord. Therefore, Offeror shall

assume all cost risks associated with

delivery in accordance with the required

specifications detailed in this ITN,

including Attachment A (see pages 28 ȃ 45).

Additionally, replies for space which is

currently under lease with, or occupancy by,

the Florida Fish and Wildlife Conservation

Commission does not exclude the Offeror from

meeting the requirements specified in this

ITN document.

Offeror agrees to provide Ðturn ȃ keyÑ

build ȃ out/improvements in accordance with the

specifications detailed in this ITN.

(use an X to mark one of the following):

YES ______ or NO______

16 . TCC responded ÐNOÑ to the statement ÐOfferor agrees to

provide Ò turn - key Ó build - out/improvements in accordance with the

specif ications detailed in this ITN.Ñ

Additional Response

17 . Not only did TCC include a barred tenant - improvement

cap, but TCC also attached an addendum to its proposal, which

provided the following:

The reality is that as the current Landlord,

it would be impossible to ask FFWCC to move

out of its existing office space in order to

meet the requested Agency Specifications in

Attachment A. If this condition makes our

response to the Invitation to Negotiate

(ITN) Ðnon - responsiveÑ, we stand willing to

continu e further negotiations with FFWCC.

18 . There was no provision in the ITN for additional

responses outside what was requested in the ITN. More

importantly, the addendum indicated TCC could not comply with

the ITN, unless certain conditions were met. M r. Hakimi

confirmed the effect of what was written in the addendum when he

testified that TCC is unable to meet Attachment AÓs

specifications because it presently has a tenant in place ( i.e.,

FWC) that prevents it from constructing the building

improvement s necessary to comply with ITN Attachment A.

Proof of Ownership of Property

19 . The ITN also provided that to be responsive, each

lessor was required to submit certain documentation

demonstrating the lessorÓs control of the property proposed for

the leased space:

1. Replies must completely and accurately

respond to all requested information,

including the following :

(A) Control of Property (Applicable for

Replies for Existing and/or Non ȃ Existing

Buildings).

For a Reply to be responsive, it must be

submitted by one of the entities listed

below, and the proposal must include

supporting documentation proving control of

the property proposed. This requirement

applies to:

1. The real property (land) ;

2. The proposed building(s) (or

structure(s) ;

3. The proposed parking area(s). Control

of parking includes the area(s) of ingress

and egress to both the real property and the

building(s).

¤ The owner of record of the facility(s)

and parking area(s) Î Submit a copy of the

deed(s) evidencing clear title to the

property proposed .

¤ The authorized agent, broker or legal

representative of the owner(s) Î Submit a

copy of the Special Power of Attorney

authorizing submission of the proposal.

20 . The Special Power of Attorney form was attached to the

ITN as Attachment K. TCCÓs certification was executed by TCC

president , Lyda Hakimi. However, T CC did not execute

Attachment K or include an executed power of attorney to

demonstrate that TCC has control of the property.

21 . The evidence offered at hea ring of the propertyÓs

ownership contained in TCCÓs reply was a deed showing DRA CRT

Tallahassee Center , LLC to be the property owner. Respondent

argued that although TCC owns DRA CRT Tallahassee Center, LLC,

the tw o are different legal entities. Because these were two

different legal entities, TCC was required to provid e a copy of

A ttachment K to its response to be deemed responsive.

Broker Commission

22 . The ITN required lessors to agree to execute a broker -

commission agreement, which was at tached to the ITN as

Attachment J:

Offeror understands FWC is utilizing the

services of a Tenant Broker representative

for this lease space requirement and the

successful Offeror shall execute a

Commission Agreement , in coordination with

FWC Ó s Tenant Broker repres entative, within

fifteen (15) business days of notification

of Award.

Offeror agrees and acknowledges that a

Tenant Broker Commission Agreement is a

requirement and the successful Offeror

shall be required to execute a Commission

Agreement as described a bove .

(use an X to mark one of the following):

YES ______ or NO______

23 . The ITN included a schedule for the commission rate

based on the total aggregate gross base rent that could be paid

ranging from 2.50 percent to 3.50 percent . TCC conditioned i ts

reply by agr eeing to pay a two - percent broker commission, which

is inconsistent with the commission schedule.

24 . By offering a lower commission rate, TCC could save

money. TCC would then have a competitive advantage over other

bidders.

TCCÓS Bid w as Nonresponsive

25 . Based upon the foregoing, TCCÓs bid submission added a

tenant - improvement cap, failed to comply with the broker

commission rate , failed to provide supporting documents to

demonstrate proof of property ownership, and added additional

conditions regarding compliance with the ITN requirements. The

information requested and terms of the ITN were required for

TCCÓs bid to be responsive.

26 . TCC did not file a challenge to the specifications or

any of the requirements of the ITN. I t is n ow too late for such

a challenge.

27. TCCÓs inclu sion of a tenant - improvement allowance

l imits the amount that would pay for improvements. The low er

broker commission increases t he profit advantage for TCC more

than for other bidders , which would be an u nfair advantage over

other bidders.

28 . TCCÓs failure to comply with the terms of the ITN and

failure t o provide the required attachment to show proof of

ownership were not minor irregularities, which FWC could waive.

Therefore, FWC properly determined that TCCÓs bid submission was

nonresponsive .

Standing

29 . TCC submitted a bid proposal that did not conform t o

the requirements of the ITN and it seeks relief that includes

setting aside FWCÓs rejection of its proposal. Therefore, TCC

has standing to bring this protest.

30 . If it is determined that TCC was nonresponsive,

NLH has standing to the extent the procurement process could be

deemed contrary to competition.

CONCLUSIONS OF LAW

31 . The Division of Administrative Hearings has

jurisdiction ov er the subject matter and the parties to this

action in accordance wi th s ections 120.569 and 120.57(3 ),

Florida Statutes (2017) .

32 . TCC submitted a bid proposal that did not conform to

the requirements of the ITN. Because the relief sought by TCC

is to set aside its rejection of PetitionerÓs reply, TCC has

standing to bring this protest. Capelletti Bro s ., Inc. v. Dep Ó t

of Gen. Serv s . , 432 So. 2d 1359 (Fla. 1st DCA 1983) .

33 . Petitioner, as the party challenging the proposed

agency action, has the burd en of proof in this proceeding and

must show that the agency's proposed action is contrary to the

agency's governing statutes, rules or policies, or the bid or

proposal specifications. A de novo hearing was conducted to

evaluate the action taken by the ag en cy. § 120.57(3)(f), Fla.

Stat. ; State Contracting & EngÓg Corp. v. Dep Ó t of Transp . ,

709 So. 2d 607 (Fla. 1st DCA 1998). The administrative law

judge may receive evidence, as wit h any hearing held pursuant to

s ection 120.57(1), but the purpose of the p roceeding is to

evaluate the action taken by the agency based on the information

available to the agency at the time it took the action. I d.

34 . Agencies enjoy wide discretion when it comes to

soliciting and accepting proposals, and an agency's decision ,

when based upon an honest exercise of such discretion, will not

be set aside even where it may appear erroneous or if reasonable

persons may disagree. Baxter's Asphalt & Concrete, Inc. v.

Dep Ó t of Transp . , 475 So. 2d 1284, 1287 (Fla. 1st DCA 1985);

Cap eletti Bros., Inc. v. State, Dep Ó t of Gen. Serv s. , 4 32 So. 2d

at 1363 . Section 120.57(3)(f) establi shes the standard of proof

as to whether the proposed action was clearly erroneous,

contrary to competition, arbitrary or capricious.

35 . A decision is co nsidered to be clearly erroneous when ,

although there is evidence to support it, after review of the

entire record the tribunal is left with the definite and firm

conviction that a mistake has been committed. U. S . v. U.S.

Gypsum Co. , 333 U.S. 354, 395 (19 48). An agency action is

capricious if the agency takes the action without thought or

reason or irrationally. Agency action is arbitrary if it is not

supported by facts or logic. See Agrico Chem. Co. v. State

Dep Ó t of Envt l . Reg . , 365 So. 2d 759, 763 (F la. 1st DCA 1978).

An agency decision is contrary to competition if it unreasonably

interferes with the objectives of competitive bidding.

See Wester v. Belote , 138 So. 721, 723 - 24 (1931).

TCCÓs Bid

36 . In this case, TCC submitted a bid as an Ðexisting Ñ

building offeror. Its bid, however, is contrary to proposal

specifications with respect to the tenant - improvement cap and

the broker commission rate.

37 . The ITN was issued pursuant to section 255.25, Florida

Statutes (2017) , which applies to state ag enciesÓ procurement of

leased building space.

38 . Section 255.25 (3)(a)3. p rovides , in pertinent part :

a. If the agency determines in writing that

the use of an invitation to bid or a request

for proposals will not result in the best

leasing value to th e state, the agency may

procure leased space by competitive sealed

replies . . . .

b. The agency shall evaluate and rank

responsive replies against all evaluation

criteria set forth in the invitation to

negotiate and select, based on the ranking,

one or more lessors with which to commence

negotiations. After negotiations are

conducted, the agency shall award the

contract to the responsible and responsive

lessor that the agency determines will

provide the best leasing value to the state.

39 . Section 2 55.248 defines Ð responsive reply , Ñ as used in

255.25 , as a reply Ðsubmitted by a responsive and responsible

lessor, which conforms in all material respects to the

solicitation.Ñ £ 225.248(7), Fla. Stat. Ð Responsive lessor Ñ is

defined as Ða lessor that ha s submitted a bid, proposal, or

reply that conforms in all material respects to the

solicitation.Ñ § 225.248(8), Fla. Stat.

40 . A lessor whose reply conform s in all material respects

to the ITN may be invited to negotiate. Here, TCCÓs offer was

not res ponsive in several areas. First, TCC offered lease rates

that included a tenan t - improvement cap. Second, TCC - offered

lease rates were contingent on FWCÓs acceptance of terms

expressly prohibited by the ITN. Third, TCC failed to

demonstrate control of th e property it offered for lease.

Fourth, TCC offered a different broker commission than the ITN

required lessors to agree to.

41 . TCC argues that because this procurement involves an

ITN and not a request for proposals or invitation to bid, lessors

are a llowed to modify their replies during the negotia tion

process. TCC is under the impression that the initial ITN

replies do not need to conform strict ly to the ITN requirements.

A lthough section 255.25 allows FWC and lessors to negotiate to

achieve the be st value for the State, the reply submitted must be

responsive to the ITN.

42 . TCCÓs failure to comply with the terms, conditions,

and specifications renders a vendor nonresponsive and ineligible

for negotiations. As a nonresponsive lessor, TCC was not

eligible to participate in negotiations and was not eligible for

the ultimate award under the ITN process.

TCC Failed to Prove that I ts Bid Submittal was Responsive

43 . The evidence overwhelmingly established that TCCÓs bid

submission did not include al l of the documentation and failed to

co mply with the terms of the ITN specifically required to comply

with the ITN. It is for these reasons that FWC determined that

TCCÓ s bid submission was nonresponsive.

44 . The determination that TCCÓs bid submission d id not

include all of the documentation and full compliance as required

by the ITN, however, does not end this analysis . Not all

irregularities in bid submissions or deviations from the terms of

an invitation to bid are considered material enough to requi re

rejection of a bid submittal. Tropabest F oods, Inc. v. DepÓt of

Gen. Servs . , 493 So. 2d 50 (Fla. 1st DCA 1986); s ee also Fla.

Admin . Code R. 60A - 1.002(13) . A deviation from the requirements

of an invitation to bid " is only material if it gives the bid der

a substantial advantage over the other bidders and thereby

restricts or stifles competition. Ñ Tropabest Foods , 493 So. 2d

at 52. See also Robinson Elec. Co. v. Dade Cnty. , 417 So. 2d

1032, 1034 (Fla. 3d DCA 1982).

45. In Florida , there are two crite ria that are used to

determine whether a deviation is material as follows :

(1) whether the effect of waiving the deviation would be to

deprive the agency of a ssurance that the contract will be

performed and guaranteed according to its specified requireme nts ;

or (2) whether the deviation is of such a nature that its waiver

would adversely affect competiti ve bidding by placing a bidder in

a position of advantage over other bidders or by otherwise

u ndermining the necessary common standard of competition. Id .

46. The First District Court of Appeal has found that, by

definition, anything affecting the price of a bid is not a minor

irregularity and may not be waive d by the agency. Rather, a

deviation affecting price is material and m ay not be waived by

the ag ency. Mercedes Lighting & Elec. Supp., Inc. v. Fla. DepÓt

of Gen. Servs. , 560 So. 2d 272, 278 (Fla. 1st DCA 1990).

47. TCCÓs deviations from the ITN requirements were

material. As stated above, in the findings of fact above, the

deviations affected pric e and afforded TCC a competitive

advantage over other bidders .

Waiver to Challenge Specifications

4 8 . TCC also argues that the ITNÓs terms, conditions, and

specifications should have been different to accommodate TCC as

the current lessor. To the extent TCC seeks through its

petition to challenge the ITN terms, conditions, and

specifications, TCC has waived that opportunity by failing to

timely bring such a challenge. See § 120.57(3)(b), Fla. Stat.

TCC also accepted the ITN terms, conditions, and specif ications

as published when TCC submitted its reply. The undersigned is

without authority to consider a specifications challenge at this

stage of the procurement process.

4 9 . Section 120.57(3)(b) provides as follows:

With respect to a protest of the ter ms,

conditions, and specifications contained in

a solicitation, including any provisions

governing the methods for ranking bids,

proposals, or replies, awarding contracts,

reserving rights of further negotiation, or

modifying or amending any contract, the

notice of protest shall be filed in writing

within 72 hours after the posting of the

solicitation . . . . Failure to file a

notice of protest or failure to file a

formal written protest shall constitute a

waiver of proceedings under this chapter.

50 . Si milarly, t he ITN provided as follows:

With respect to a protest of the terms,

conditions and specifications contained in

this solicitation, including any provisions

governing the methods for ranking Replies,

awarding contracts, or modifying or amending

a ny contract, the notice of protest shall be

filed in writing within 72 hours (Saturdays,

Sundays, and state holidays excluded) after

the posting of the solicitation. For

purposes of this provision, the term Ðthe

solicitationÑ includes any addendum,

respon se to written questions, clarification

or other document concerning the terms,

conditions, or specifications of the

solicitation.

51. The purpose of requiring solicitation terms,

conditions, and specifications to be challenged within 72 hours

of publicat ion Ðis to allow an agency, in order to save expense

to the bidders and to assure fair competition among them, to

correct or clarify plans and specifications prior to accepting

bids.Ñ Capeletti Bros., Inc. v. DepÓt of Transp. , 499 So. 2d

855, 857 (Fla. 1s t DCA 1986).

52 . TCC relies on B&L Service, Inc. v. Department of

Health and Rehabilitative Services , 624 So. 2d 805 (Fla. 1st DCA

1993), to argue that the ITNÓs terms, conditions, and

specifications may be challenged through a challenge to the

award. H owever, B&L Service does not apply here . B&L Service

was decided under the previous version of the statutory

provision, which applied only to challenges based on project

plans or specifications. 1/

53 . Regarding a protest of the specifications contained in

an invitation to bid or in a request for proposals, the previous

version of the statute provide that the notice of protest was to

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 ITN or request for proposals.

§ 120.53(5)(b), Fla. Stat. (1992) (former version of

120.57(3)(b)).

54 . The current version broadens the scope of what must be

challenged within 72 hours of the solicitationÓs specifications

to avoid a waiver of rights as follows: Ðthe terms, conditions,

and specifications contained in a solicitation, including any

provisions governing the methods for ranking bids, proposals, or

replies, awarding contracts, reserving rights of further

negotia tion, or modifying or amending any contract.Ñ

§ 120.57(3)(b), Fla. Stat.

55 . In this case, by failing to raise these complaints

within 72 hours of the ITNÓs publicati on, TCC waived the right to

raise the allegations in this proceeding.

56 . In summary, FWCÓs propos ed action regarding ITN

No. 770 - 0235 is not contrary to competition, arbitrary , or

capricious, and do es not contravene FWCÓs governing statutes,

rules , or policies.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that Florida Fish and Wil dl ife

Conservation Commission enter a final order dismissing

Tallahassee Corporate Center, LLCÓs Petition.

DONE AND ENTERED this 27 th day of March , 2018 , in

Tallahassee, Leon County, Florida.

S

YOLONDA Y. GREEN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Cle rk of the

Division of Administrative Hearings

t his 27 th day of March , 2018.

ENDNOTE

1/ With respect to 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

intend ed project plans and specifications in an invitation to

bid or request for proposals. § 120.53(5)(b), Fla. Stat. (1992)

(former version of 120.57(3)(b)).

COPIES FURNISHED:

Anthony Justin Pinzino, Esquire

Florida Fish and Wildlife

Conservation Commis sion

Farris Bryant Building

620 South Meridian Street

Tallahassee, Florida 32399 - 1600

(eServed)

M. Stephen Turner, Esquire

David K. Miller, Esquire

John F. Loar, Esquire

Broad and Cassel

Suite 400

215 South Monroe Street

Tallahassee, Florida 32301

( eServed)

M. Christopher Bryant, Esquire

Segundo J. Fernandez, Esquire

Oertel, Fernandez, Bryant & Atkinson, P.A.

Post Office Box 1110

Tallahassee, Florida 32302 - 1110

(eServed)

Eduardo S. Lombard, Esquire

Vezina, Lawrence and Piscitelli, P.A.

413 East Pa rk Avenue

Tallahassee, Florida 32301

(eServed)

Eugene Nichols "Nick" Wiley II, Exec utive Director

Florida Fish and Wildlife

Conservation Commission

Farris Bryant Building

620 South Meridian Street

Tallahassee, Florida 32399 - 1600

(eServed)

Harold G. "Bud" Vielhauer, General Co unsel

Florida Fish and Wildlife

Conservation Commission

Farris Bryant Building

620 South Meridian Street

Tallahassee, Florida 32399 - 1600

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submi t written exceptions within

1 0 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.