STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

INTERSTATE PIPE MAINTENANCE, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 84-1660BID

) DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William J. Kendrick, held a public hearing in the above-styled case on October 1, 1984, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Daniel S. Mandel, Esquire

Stuart, Mandel, and Curry 800 Northwest 62nd Street

Fort Lauderdale, Florida 33309

For Respondent: Robert I. Scanlan, Esquire

Department of Transportation

Haydon Burns Building, Mail Station 58 Tallahassee, Florida 32301

These proceedings arose in connection with the solicitation of bids by the Florida Department of Transportation (DOT) for a vacuum catch basin and storm sewer cleaner mounted on a truck carrier. Petitioner, Interstate Pipe Maintenance, Inc., filed a bid protest alleging that the specifications favored two manufacturers and, through design requirements, eliminated from competition the equipment which Petitioner sold.

At the final hearing Petitioner called Robert C. Lassiter, James Wurster, Richard Felix Denmon, and Richard E. Bichler, as witnesses. Petitioner offered Exhibits 1 through 7, and they were received into evidence. Respondent called Oris Conley, James Andrew Lewis, and Robert C. Lassiter, as witnesses.

Respondent offered Exhibits 1 through 12, and they were received into evidence. Petitioner and Respondent offered Joint Exhibit 1, which was received into evidence. Donald Walker was called as a witness on his own behalf.

Both parties have submitted proposed findings of fact and conclusions of law. The parties' proposed findings and conclusions, unless expressly set out in the findings of fact which follow, are specifically rejected as not supported by the evidence of record, contrary to the better weight of the evidence, irrelevant to the issues presented for determination, or legally erroneous.

FINDINGS OF FACT

1. On February 27, 1984, the Respondent, Department of Transportation (DOT), formalized its minimum specifications for the purchase by competitive bid of a vacuum catch basin and storm sewer cleaner mounted on a truck carrier (Joint Exhibit 1). The primary purpose of this equipment, as stated in the specifications, was

   
   

   . . . to clean catch basins and to flush debris from storm sewer lines while vacuuming it from the catch basin. The sewer cleaner will also be used to vacuum gutters while in motion and may be used for other purposes such as washing signs or fighting brush fires.

   
   

   The equipment had to be specifically designed to handle dry and wet sand and soil, leaves, stones, roadside litter, small limbs, and other material which is washed into storm sewers.

   
   

2. DOT's equipment specification required, among other things, a dual engine configuration (one engine to drive the carrier and a separate engine to drive the vacuuming system) and a tilt dumping capability. DOT specified a VAC- ALL 3010, Vactor 810, or equivalent.

   
   

3. Petitioner, Interstate Pipe Maintenance, Inc. (Interstate) is a Florida corporation engaged in the business of cleaning sanitary and storm sewers, and the sale of related equipment including the Camel, a single engine--ejector dumping storm sewer line cleaner--manufactured by Super Products.

   
   

4. Interstate objected to DOT's February 27, 1984, minimum bid specifications, alleging that it was precluded from bidding its product, the Camel, because of the arbitrary and capricious establishment of the dual engine and tilt dumping requirements set forth in the bid specifications.

   
   

5. The Camel, which Interstate would have bid, meets the minimum bid specifications with the exception of the dual engine and tilt dumping requirements. The sole issue for resolution in this case is whether the establishment of the dual engine and tilt dumping requirements was arbitrary and capricious.

   
   

6. The Camel, manufactured by Super Products and distributed in Florida by Interstate, does not have a separate auxiliary blower engine for the vacuum unit. The Camel uses the truck engine to drive the vacuum pump from a split shaft power takeoff. The Camel vacuum system uses a positive displacement blower, rather than the industrial blower engine (centrifugal system) used in both the VAC-ALL 3010 and the Vactor 810. A unit using a positive displacement system has 85 percent efficiency whereas a centrifugal system has only 40 percent. Because of this difference in design, the Camel can perform the same functions with one engine as the VAC-ALL 3010 and Vactor 810 can with two.

   
   

7. In 1972, Interstate had also filed a bid protest to DOT's procurement specification requiring a two-engine system. Interstate withdrew its protest upon DOT's promise to (1) have a demonstration of the Camel, and (2) consider the characteristics of the Camel prior to use of the specification for future procurement activity.

8. DOT did receive a demonstration of the Camel and, at the final hearing in this case, only voiced two negative observations: (1) the Camel ran out of water before the job was done, and (2) the takeoff and gear box assembly was extremely noisy. These observations did not, however, effect the Camel's ability to facially meet the minimum bid specifications.

   
   

9. In September, 1983, DOT (by its Mobile Equipment Engineeer, R. C. Lassiter) prepared a questionnaire and submitted it to all district maintenance engineers to elicit their recommendations as to certain of the storm sewer machine requirements. Of the questions posed, one specifically inquired "Should the dumping characteristics of the unit be tilt dumping or ejection dumping?". Four out of the six engineers who responded specified tilt dumping since it required less maintenance or the machine was easier to clean and service when the storage area could be raised. Of the two engineers who preferred ejection dumping, neither expressed any reason for his preference.

   
   

10. Mr. Lassiter's September, 1983, questionnaire did not seek the opinion of the district maintenance engineers on the dual versus single engine question which had been raised in the 1982 bid dispute. Mr. Lassiter's reason for not asking that question was

    
    

    . . . because I did not consider that question appropriate to ask the operators. Our Roadside Maintenance Engineer, Mr.

    Lewis, has indicated it would be preferable for the unit to be able to pick up debris while in motion. To accomplish this, it appears that the carrier engine and upper works engine must be separate. Also, it is my opinion, from an engineering standpoint, as well as from demonstrations witnessed, that the positive displacement blowers offered by all single engine units do not move enough air to offer the degree of air entrainment required to satisfactorily meet the Department's needs. Our specification requires that the blower be able to handle 12,000 cfm of air at 48" negative water pressure. The positive displacement blowers used on single engine units that we have reviewed cannot obtain this quantity of air flow. (Petitioner's Exhibit 2)

    (Emphasis added)

    
    

11. The factors upon which Mr. Lassiter (DOT) based his decision to require a dual engine specification were based on specified performance factors which he felt a single engine machine could not meet. The Camel can, however, meet these specifications.

    
    

12. The evidence established that DOT had no cogent reason to require a dual engine standard.

    
    

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

14. The burden is upon Interstate to establish by a preponderance of the evidence that DOT acted arbitrarily and capriciously in establishing a dual engine and tilt dumping requirement as part of its February 27, 1984, minimum equipment specification for a vacuum catch basin and storm sewer cleaner. Florida Department of Transportation v. JWC Company, Inc., 396 So.2d 778 (Fla. 1st DCA 1981).

    
    

15. In Florida, a public body has wide discretion in soliciting and accepting bids for public works contracts and its decision, if based on an honest exercise of this discretion, will not be disturbed even if it appears erroneous and even if reasonable persons may disagree. Capeletti Brothers v. State Department of General Services, 432 So.2d 1359 (Fla. 1st DCA 1983).

    
    

16. In exercising its discretion, however, a public body must be mindful that the objective to be attained by public bidding is to ensure full and free competition. Consequently, specifications should be framed to secure fair competition upon equal terms to all bidders, and should contain nothing that would otherwise prevent or restrict full and free competition. 64 Am.Jur.2d, Public Works and Contracts, Section 50,51.

    
    

17. Applying the foregoing standards to the facts of this case compels the following conclusions:

    
    

18. DOT's bid specification mandating a dual engine machine was arbitrary and capricious. DOT specified a dual engine machine upon the assumption that a single engine machine could not meet the performance specifications demanded. Performance specifications are self-eliminating. If a machine cannot meet the performance specifications, it matters not whether it is a dual or single engine system. Conversely, if it can satisfy the performance specifications it, absent some other factors not present here, 1/ should be permitted an opportunity for consideration. The preponderance of the evidence established that there was no basis in fact to exclude a product from competing merely because, if capable, it could perform the same functions with only one engine.

    
    

19. DOT's bid specification mandating a tilt dumping machine was not arbitrary and capricious. DOT solicited the opinions and desires of its district maintenance engineers who overwhelmingly preferred the tilt dumping system over the ejection system because it required less maintenance and the vehicle was easier to clean and service when the storage area could be raised. Based on the preference of the users of the product, DOT established a tilt dumping specification. While some might disagree with its decision, DOT evidenced an honest exercise of its discretion.

    
    

20. Based upon the foregoing Findings of Fact and Conclusions of Law, it

is

RECOMMENDED that:

1. Interstate's protest of the tilt dumping bid specification be

   dismissed with prejudice.

   
   

2. Interstate's protest of the dual engine bid specification be sustained.

   
   

3. The Department of Transportation redraft its bid specifications for the vacuum catch basin and storm sewer cleaner to eliminate, as a minimum standard, a dual engine requirement.

DONE AND ENTERED this 27th day of November, 1984, at Tallahassee, Florida.

WILLIAM J. KENDRICK

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 27th day of November, 1984.

ENDNOTE

1/ One factor which could support a dual engine specification would be a need for a piece of portable equipment. In such case, separate engines would be necessary.

COPIES FURNISHED:

Daniel S. Mandel, Esquire Stuart, Mandel, and Curry 800 Northwest 62nd Street

Fort Lauderdale, Florida 33309

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

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

Docket for Case No: 84-001660

Orders for Case No: 84-001660