DEPARTMENT OF ECONOMIC OPPORTUNITY
Division of Workforce Services
DEO Final Order No. DEO 19-045
STATE OF FLORIDA
DEPARTMENT OF ECONOMIC OPPORTUNITY
In re:Notice of Protest
19-RFP-014-WM – Intent to Award
Filed By 22nd Century Technologies, Inc.
______________________________________________
FINAL ORDER OF DISMISSAL
THIS MATTER has come before the Department of Economic Opportunity (Department) upon the notice of protest filed with the Department by 22nd Century Technologies, Inc., (22nd Century) as to the Department’s notice of Intent to Award for solicitation number 19-RFP-014-WM.
1. On Thursday, October 24, 2019, at 10:00 A.M., the Department electronically posted its notice of Intent to Award for solicitation number 19-RFP-014-WM. The notice contained the following statement:
Failure to file a protest within the time prescribed in section 120.57(3), Florida Statutes, or failure to post the bond or other security required by law within the time allowed for filing a bond shall constitute a waiver of proceedings under chapter 120, Florida Statutes.
2. A copy of the notice is attached hereto as Exhibit A.
3. On Tuesday, October 29, 2019, 10:00 a.m., the 72-hour period to file a notice of protest expired.
4. 22nd Century initiated an email communication with the Department’s Office of Purchasing and Procurement on Tuesday, October 29, 2019, 10:26 a.m., wherein 22nd Century requested documents and a meeting to “improve for future solicitations by gathering information about our proposal performance against solicitation specifications and evaluation criteria.”
5. The Department responded on October 29, 2019, 2:03 p.m., declining to meet, but agreeing to provide the requested documents.
6. 22nd Century responded on October 29, 2019, 2:39 p.m., indicating “We would like to protest this award decision and request the DEO to hold off the contract execution.”
7. 22nd Century’s email of October 29, 2019, 2:39 p.m., fell outside of the 72-hour period for filing a notice of protest.
8. A copy of the email communication is attached hereto as composite Exhibit B.
9. Pursuant to paragraph 120.57(3)(b), Florida Statutes, a person who is adversely affected by the agency decision or intended decision shall file a notice of protest in writing within 72 hours after the posting of the decision or intended decision. Failure to file a timely notice of protest or formal written protest constitutes a waiver of proceedings under Chapter 120, Florida Statutes.
10. Subsection 28-110.003(2), Florida Administrative Code, provides that the 72-hour period begins upon electronic posting of a decision or intended decision. The notice of protest must be received by the agency before the 72-hour period expires.
11. Subsection 120.57(3), Florida Statutes, subsection 28-110.003(2), Florida Administrative Code, and the notice of Intent to Award in solicitation number 19-RFP-014-WM, explicitly advise that failure to comply with the statutory time requirements constitute a waiver of proceedings under Chapter 120, Florida Statutes.
Based on the foregoing, it is ORDERED that 22nd Century’s notice of protest is untimely, and is dismissed with prejudice. DONE AND ORDERED in Tallahassee, Florida.
/s/Brian McManus, Brian McManus, Chief of Staff, Department of Economic Opportunity
NOTICE OF RIGHT TO JUDICIAL REVIEW
THIS FINAL ORDER CONSTITUTES FINAL AGENCY ACTION UNDER CHAPTER 120, FLORIDA STATUTES. A PARTY WHO IS ADVERSELY AFFECTED BY FINAL AGENCY ACTION IS ENTITLED TO JUDICIAL REVIEW IN ACCORDANCE WITH SECTION 120.68, FLORIDA STATUTES, AND FLORIDA RULES OF APPELLATE PROCEDURE 9.030(B)(1)(C) AND 9.110.
TO INITIATE JUDICIAL REVIEW OF THIS FINAL AGENCY ACTION, A NOTICE OF APPEAL MUST BE FILED WITH THE APPROPRIATE DISTRICT COURT OF APPEAL WITHIN THIRTY (30) CALENDAR DAYS AFTER THE DATE THE FINAL AGENCY ACTION WAS FILED BY THE AGENCY CLERK. THE NOTICE OF APPEAL MUST BE ACCOMPANIED BY THE FILING FEE SPECIFIED IN SECTION 35.22, FLORIDA STATUTES.
A COPY OF THE NOTICE OF APPEAL MUST ALSO BE FILED WITH THE DEPARTMENT’S AGENCY CLERK, 107 EAST MADISON STREET, CALDWELL BUILDING, MSC 110, TALLAHASSEE, FLORIDA 32399-4128, AGENCY.CLERK@DEO.MYFLORIDA.COM. A DOCUMENT IS FILED WHEN IT IS RECEIVED. THE NOTICE OF APPEAL MUST BE SUBSTANTIALLY IN THE FORM PRESCRIBED BY FLORIDA RULE OF APPELLATE PROCEDURE 9.900(A).
AN ADVERSELY AFFECTED PARTY WAIVES THE RIGHT TO JUDICIAL REVIEW IF THE NOTICE OF APPEAL IS NOT TIMELY FILED WITH BOTH THE DEPARTMENT’S AGENCY CLERK AND THE APPROPRIATE DISTRICT COURT OF APPEAL.
CERTIFICATE OF FILING AND SERVICE
I HEREBY CERTIFY that the original of the foregoing Final Order has been filed with the undersigned designated Agency Clerk, and that true and correct copies have been furnished to the following persons by the methods indicated this 4th day of November, 2019. /s/Janay Lovett, Agency Clerk, Department of Economic Opportunity, 107 East Madison Street, MSC 110, Tallahassee, FL 32399-4128
By Certified U.S. Mail:
Eva Gaddis-McKnight, Administrator, 22nd Century Technologies, Inc., 220 Davidson Ave., Ste. 118, Somerset, NJ 08873
By Electronic Mail
Crystal Cooper, Account Manager, 22nd Century Technologies, Inc., crystalc@tscti.com.
