STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA DEPARTMENT OF )

TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 81-985BID

)

CAPELETTI BROTHERS, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

By Motion to Dismiss filed July 28, 1981, Respondent, by and through its attorney, seeks to have these proceedings, in which Petitioner seeks to bar Respondent from bidding on future Department of Transportation (DOT) contracts, dismissed. As grounds for initiating these proceedings, Petitioner has alleged that Respondent's progress on Job No. 865-20-3604 FAP No. TQBRM-6839(1) BROWARD COUNTY is unsatisfactory and that Respondent is delinquent on this contract.

As grounds for dismissing these proceedings, Respondent alleges that Job No. 865-20-3604 has been conditionally accepted by Petitioner and the notice of delinquency, which Respondent is contesting in these proceedings, has been withdrawn.

Petitioner, in Opposition to Respondent's Motion to Dismiss filed August 5, 1981, does not dispute the allegations that Respondent has completed the project in question, the project has been conditionally accepted by DOT, and that the notice of delinquency has been withdrawn, but opposes dismissing these proceedings without a determination, after an administrative hearing, that Respondent was, in fact, delinquent as alleged. Petitioner argues with considerable logic that the inability of DOT to suspend a contractor from bidding on future contracts until after an administrative hearing to determine his current delinquency leaves DOT without an enforcement tool due to the inherent delays attendant with a formal administrative hearing. As a result, DOT argues, contractors who are far behind schedule on a particular contract cannot be prevented from becoming the successful bidder on another contract pending completion of the administrative determination of delinquency on the first contract; nor can they be encouraged to complete projects timely with an enforcement stick rendered powerless once the project is accepted.

Rule 14-23.01(2), Florida Administrative Code, provides for disqualification of contractors who are delinquent by providing:

Any contractor declared delinquent by the Director of Road Operations under the provisions of this Policy shall be disqualified from further bidding and shall be disapproved as a contractor so long as the delinquency status exists. Also, any

individual, firm, partnership or corporation affiliated with a delinquent contractor to the extent that it is dependent upon the delinquent contractor for either personnel, equipment or finances shall likewise be disqualified. (Emphasis added.)

In Capeletti Bros., Inc. v. State of Florida, Department of Transportation,

362 So.2d 346 (1 DCA Fla. 1978), the Court held that the Department could not suspend or revoke a contractor's qualification to bid on construction work without affording the contractor the same administrative due process given to all ether licensees before disciplinary action may be taken against their licenses. Thus, no suspension of a contractor's right to bid could be effective until the contractor had been afforded his right to a formal hearing at which he is given the benefits of Chapter 120, Florida Statutes.

It is a settled rule of law that an agency is bound by its own substantive rules until they are amended or abrogated. Gadsden State Bank v. Lewis, 348 So.2d 343 (1 DCA Fla. 1977)

The underlined words in Rule 14-23.01(2) above quoted are words of conditional limitation. Once the condition occurs the limitation or disability is terminated immediately without further action by anyone. Once the delinquency status is terminated, the suspension of the contractor's right to bid is likewise terminated. By removing Respondent's delinquency status, the latter is no longer delinquent and Petitioner's rule precludes Petitioner from suspending a contractor who is no longer delinquent.

From the foregoing, it is concluded that Petitioner, pursuant to Rule 14- 23.01(2), can only take action to limit a delinquent contractor's right to bid while the contractor remains in a state of delinquency. Once the Department removes the delinquency status of a contractor, the power to disqualify a contractor by reason of delinquency, under the present rule, is also removed. It is therefore

RECOMMENDED that these proceedings be dismissed and this case closed. ENTERED this 14th day of August, 1981, in Tallahassee, Florida.

K. N. AYERS, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 14th day of August, 1981.

COPIES FURNISHED:

V. L. Whittier, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32301

Kenneth G. Oertel, Esquire Oertel & Laramore, P.A.

646 Lewis State Bank Building Tallahassee, Florida 32301

Mr. Jacob D. Varn, Secretary Department of Transportation Haydon Burns Building, MS 57 Tallahassee, Florida 32301

Docket for Case No: 81-000985

Orders for Case No: 81-000985