STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BAXTER'S ASPHALT AND CONCRETE, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 83-3397BID

)

DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for final hearing in Tallahassee, Florida, before the Division of Administrative Hearings by its duly designated Hearing Officer, Robert T. Benton, II, on January 30, 1984. The parties were represented by counsel:

For Petitioner: Frank A. Baker, Esquire

Roberts and Baker Post Office Box 854

Marianna, Florida 32446

For Respondent: Robert I. Scanlan, Esquire

Haydon Burns Building, Mail Station 58 Tallahassee, Florida 32301

These formal administrative proceedings began with the timely filing of a formal written protest that followed the original notice of protest in writing, also timely filed, that called into question the proposed award by respondent Department of Transportation (DOT) to Gulf Asphalt Corporation (Gulf) of a contract to perform certain highway construction work in Jackson County, Job No. 53030-3511. Petitioner Baxter's Asphalt and Concrete, Inc. (Baxter) also bid on the job.

ISSUE

Whether a bid dispute arising in connection with an emergency bid letting is an appropriate subject for formal administrative proceedings, in the absence of an administrative challenge to the fact of the emergency?

FINDINGS OF FACT

1. The parties stipulated that DOT had "received [Baxter's] notices of protest dated September 23, 1983, October 14, 1983, and December 16, 1983, protesting the Department of Transportation's determination that Baxter's Asphalt was not the lowest responsible bidder on this project and petitioning for formal administrative hearings." Baxter's bid was indeed the apparent low bid on Job No. 53030-3511, but DOT has taken the position that Baxter is not a responsible bidder, and has disregarded Baxter's bid on that account. The DOT

   has moved beyond proposed action and has actually awarded the contract to Gulf, the second low bidder. The parties stipulated:

   
   

   Pursuant to Section 120.53(5)(c) , Florida Statutes, the Department has decided to proceed with the award and execution of the contract with Gulf Asphalt Corporation in order to avoid what the Department perceived as an immediate and serious danger to the public health, safety, or welfare.

   
   

   DOT executed the contract with Gulf on January 6, 1984.

   
   

2. As grounds for executing the contract, notwithstanding the pendency of formal administrative proceedings, the Secretary of the DOT stated:

   
   

   ...The conversion of this two lane roadway to a four lane facility is badly needed to increase the traffic capacity and improve the safety of the highway for the traveling public. This

   section of roadway has a structural rating of 35 which places it in the "Critical" range . . . [and] has an accident ratio

   of 1.244 which is almost 25 percent above the average rate.

   
   

   1. dditional funds were appropriated

      by the Florida Legislature so that work could proceed without delay. It is also imperative that these projects proceed in an orderly fashion to maximize the effective use of [DOT] construction in

      spection and supervisory personnel. Letter from Secretary Pappas to Baxter, December 23, 1983.

      
      

      Baxter does not concede that an emergency exists with respect to Job No. 53030- 3511, but did concede that the existence of an emergency was for the agency head to determine, subject only to judicial review. In its petition for formal administrative proceedings, Baxter did not raise the question whether an emergency exists. For purposes of the present administrative proceeding, there is no dispute or issue as to the existence of the emergency.

      
      

      CONCLUSIONS OF LAW

      
      

3. When, as it did in the present case, DOT solicits bids, it acts not only within the framework of its substantive statutory and rule authority, but also against the background of applicable provisions of the Administrative Procedure Act set forth in Section 120.53(5), Florida Statutes (1983):

   
   

   1. Any person who is affected adversely by the agency decision or intended decision shall file with the agency a notice of protest in writing within 72 hours after the posting of the

      bid tabulation or after receipt of the notice of the agency decision or intended decision and shall file a formal written protest within 10 days after the date he filed the notice of protest. Failure to file a notice of protest or failure to file a formal written protest shall constitute a waiver of proceedings under Chapter 120.

   2. Upon receipt of a notice of protest which has been timely filed, the agency shall stop the bid solicitation process or the 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 bid solicitation process or the con tract award process without delay in order to avoid an immediate and serious danger to

      the public health, safety, or welfare.

   3. The agency, on its own initiative or upon the request of a protestor, shall provide an opportunity to resolve the protest by mutual agreement between the parties within 14 days of receipt of a formal written protest.

   1. If the subject of a protest is not resolved by mutual agreement within 14 days of receipt of the formal written protest and if there is no disputed issue of material fact, an informal proceeding

      shall be conducted pursuant to s. 120.57(2) and applicable agency rules before a person whose qualifications have been prescribed by rules of the agency.

   2. If the subject of a protest is not resolved by mutual agreement within 14 days of receipt of the formal written protest

   and if there is a disputed issue of material fact, the agency shall refer the protest to

   the division for proceedings under s. 120.57(1).

   
   

   Ordinarily, in protest situations, DOT is bound to "stop the bid solicitation process or the contract award process until the subject of the protest is resolved by final agency action." Section 120.57(5)(c) , Florida Statutes (1983). This is consonant with the fundamental, general rule that "Section

   120.57 proceedings are intended to formulate final agency action, not to review action taken earlier and preliminarily." McDonald v. Department of Banking and Finance, 346 So.2d 569, 584 (Fla. 1st DCA 1977). This general rule also pertains in bid dispute cases, so that even agency action on bids that is apparently final becomes only tentative upon timely invocation by a substantially affected party of the right to an administrative hearing. Capoletti Brothers v. State Department of General Services, 432 So.2d 1359 (Fla. 1st DCA 1983)("The rejection of the bids never became final agency action." At 1363)

4. But Section 120.53(5), Florida Statutes (1983) also contemplates cases in which "an immediate and serious danger to the public health, safety or welfare" requires final agency action on the merits of a bid protest without the salutary, but time-consuming, discipline of an administrative hearing. The decision whether a given case falls in the "emergency" category is itself agency action which, it could be argued, should be subject to Section 120.57 proceedings, in the absence of an explicit exemption. On the other hand, Section 120.53(5), Florida Statutes (1983), seems to be designed to avoid the delay which such a construction of the statute would inevitably entail. In any event, it is unnecessary to resolve this question, in the posture of the present case. Baxter has explicitly eschewed any administrative challenge to the emergency determination.

   
   

5. Baxter's complaint is that Gulf rather than Baxter was chosen to meet the emergency. But DOT has already made this choice, correctly or otherwise. Final agency action has been taken in law and in fact. Since agency action has already been formulated, no purpose would now be served by an administrative hearing. If Baxter has been wronged, its remedy, if any, is in the courts. See Liberty County v. Baxter's Asphalt & Concrete, 421 So.2d 505 (Fla. 1982).

RECOMMENDATION

Upon consideration of the foregoing, it is RECOMMENDED:

That respondent dismiss petitioner's formal written protest as moot.

DONE and ENTERED this 9th day of February, 1984, in Tallahassee, Florida.

ROBERT T. BENTON II

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 9th day of February, 1984.

COPIES FURNISHED:

Frank A. Baker, Esquire Roberts and Baker

P. O. Box 854

Marianna, Florida 32446

Robert I. Scanlan, Esquire Department of Transportation Haydon Burns Building, MS-58 Tallahassee, Florida 32301

Paul A. Pappas, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301

Docket for Case No: 83-003397

Orders for Case No: 83-003397