STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

VITO'S TRUCKING AND EXCAVATING ) COMPANY AND FRANK V. LOUIS )

EQUIPMENT COMPANY, )

)

Petitioners, )

)

vs. ) CASE NO. 84-3436BID

) DEPARTMENT OF TRANSPORTATION, )

)

Respondent, )

and )

)

TRIPLE R. PAVING, INC. )

)

Intervenor-Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in the above case before the Division of Administrative Hearings by its duly designated Hearing Officer, DONALD R. ALEXANDER, on November 21 and 26, 198 in Fort Lauderdale and Tallahassee, Florida.

APPEARANCES

For Petitioners: Kenneth G. Oertel, Esquire

646 Lewis State Bank Building Tallahassee, Florida 32301-1379

For Respondent, Robert I. Scanlon, Esquire

Department of Haydon Burns Building, Mail Station 58 Transportation: Tallahassee, Florida 32301

For Intervenor- F. Alan Cummings, Esquire Respondent, Triple Post Office Drawer 810

R. Paving, Inc.: Tallahassee, Florida 32302

BACKGROUND

On June 25, 1984, Respondent, Department of Transportation (DOT), gave notice to qualified contractors that it would receive bids for Federal Aid Project No. I-595-1 (313)9 (State Job Nos. 86095-3449 and 86095-6449) which involved construction work in Broward County, Florida. The sealed bids were received by DOT on July 25, 1984. They included bids from Petitioners, Vito's Trucking and Excavating Company and Frank V. Louis Equipment Company (Vito), and Intervenor-Respondent, Triple R Paving, Inc. (Triple R). Vito submitted a bid

for $6,458,918 while Triple R submitted a bid in the amount of $6,557,913.83, or some $98,995 higher than Vito's. However, Vito's bid was found to nonresponsive and therefore was rejected by DOT on July 25, 1984 because it failed to meet DOT's disadvantaged business enterprise goals.

On September 4, 1984, DOT posted the bids and designated Triple R as the lowest responsive bidder. On September 6, 1984, Petitioners filed their notice of protest pursuant to Subsection 120.53(5)(b), Florida Statutes. This was followed by a formal request for a 120.57(1) hearing on September 14, 1984. In their protest Petitioners generally alleged that they had substantially complied with all terms, conditions and provisions of the Invitation to Bid, that they made a good faith effort to comply with Department requirements relative to the use of disadvantaged business enterprises on the project, and that rejection of their bid was a deviation from prior agency practice in similar situations. The matter was referred to the Division of Administrative Hearings by DOT on October 1, 1984, with a request that a Hearing Officer be assigned to conduct a hearing. The final hearing in this matter was scheduled for November 5, 1984 in Fort Lauderdale, Florida. At the request of the parties the matter was rescheduled to November 21, 1984. A continued hearing was held in Tallahassee, Florida on November 26, 1984.

At the final hearing Petitioners presented the testimony of Angel Trujilo, Angelo Speno, Cheryl Heaton, Sentria J. Bullington, Louis Stramaglin and Tyrone

1. Reddish. They also offered Petitioners' exhibits 1-9; all were received in evidence. Exhibits 7 and 8 are the depositions of Sharon Wynn and Thomas E. Drawdy. Respondent DOT presented the testimony of J. Ted Barefield. Intervenor-Respondent presented the testimony of Roger Hawkes and offered Intervenor exhibits 1-3; all were received in evidence.

   
   

   Because of the need for prompt resolution of this matter, this order was prepared without the benefit of a transcript of hearing. Proposed findings of fact and conclusions of law were filed by the parties on December 7 and 11, 1984 and have been considered by the undersigned in the preparation of this order.

   Proposed findings of fact not included in this order were considered irrelevant to the issues, immaterial to the results reached, or were not supported by competent and substantial evidence.

   
   

   The issue herein is whether Triple R was the lowest and most responsive bidder on Job Nos. 86095-3449 and 86095-6449.

   
   

   Based upon all of the evidence, the following findings of fact are determined:

   
   

   FINDINGS OF FACT

   
   

   1. On June 23, 1984 Respondent, Department of Transportation (DOT), gave notice to qualified contractors that it would receive sealed bids on the following project:

      
      

      BROWARD COUNTY; FEDERAL AID PROJECT NO.

      I-595-1(313)9 (JOB NO. 86095-3449) and STATE PROJECT JOB NO. 86095-6449, SR-862 (I-595)

      (Griffin Road Detour), From Southwest 48th Ave. to Seaboard Coast Line Railroad North of Hollywood. Work consists of Extra-Heavy Grading; Construct New Pav't. and a Section of Widening and Resurfacing Existing Pav't.

      with Alt. 12Z" Limerock Base or 11", 9" or 7Z" Asph. Base Cse. (Type 1, 2 or 3) and Type III Asph. Conc. Leveling and Overbuilding Cse. both with Type S Asph. Conc. Structural Cse. and Asph. Conc. Friction Cse. (FC-1, 2 or 4); Storm Sewer and Small Drainage Structures; Conc. Curb and Gutter, Curb, Traffic Separator and Sidewalk; Conc.

      Handrail (Barrier); Guardrail (Rdwy. and Shop Bent); Fencing; Plugging Water Wells; Floating Silt Barrier; Muck Blanket; Sheeting; Water and Sanitary Sewer Lines; Aluminum and Steel Pipe Handrail; Traffic Signals; Highway Lighting; Roadway Signs; Pav't. Markings (Ref. Pav't. Markers, Painted and Thermoplastic Striping); and Incidental Items. Length 2.712 Miles. (B.I. 4140875) (APPROX. 550 CALENDAR DAYS) ON-THE-JOB TRAINING WILL BE REQUIRED FOR THIS PROJECT

      D.B.E. GOAL 12.0 PERCENT.

      
      

      The project is commonly known as the "Griffin Road Project" and is the forerunner to the construction of 1-595 in Broward County, Florida. The project generally consists of widening Griffin Road from two to six lanes for 2.71 miles so that the Road can be used as a detour while I-595 is under construction.

      Such bids were to be filed no later than 10:30 a.m. on July 25, 1984.

      
      

   2. Pursuant to state law, DOT set a 12 percent goal on the project for disadvantaged business enterprises (DBE). 2/ This means that at least 12 percent of the total work performed by the successful bidder must be subcontracted out to firms owned and controlled by socially and economically disadvantaged individuals and who are certified by DOT as qualified DBE's. The DBE specifications were set forth on pages 90 and 91 of the Special Provisions in the bid specifications and provided as follows:

      
      

      2-5.3.2 Submittals for Contracts with Goals:

      For all contracts for which DBE and/or WBE contract goals have been established, each contractor shall meet or exceed or demonstrate that it could not meet, despite its good faith efforts, the contract goals set by the Department. The DBE and WBE participation information shall be submitted with the Contractor's bid proposal. Award of the Contract shall be conditioned upon submission of the DBE and WBE participation information with the bid proposal and upon satisfaction of the contract goals or, if the goals are not met, upon demonstrating that good faith efforts were made to meet the goals.

      The Contractor's bid submission shall include the following information (Submitted on Form No. 141-12 - DBE/WBE Utilization Form No. 1):

      1. The names and addresses of certified DBE and WBE firms that

         will participate in the contract. Only DBEs and WBEs certified by the Department at the time the bid is submitted may be counted toward DBE and WBE goals.

      2. A description of the work each named DBE and WBE firm will perform.

      3. The dollar amount of participation by each named DBE and WBE firm.

         
         

         2-5.3.3 Submittals for Evaluating Good Faith Efforts;

         If the DBE or WBE goal is not met, sufficient information to demonstrate that the Contractor made good faith efforts to meet the goals shall be submitted.

         
         

         In accordance with the specifications, if a bidder cannot meet the DBE goal, it must submit with its bid proposal adequate documentation to prove that it made a "good faith effort" to fulfill the goal but was nonetheless unable to do so. A failure to meet the goal or to submit such documentation subjects the bidder to automatic disqualification and rejection.

         
         

   3. The bid specifications also defined the terms "socially and economically disadvantaged individuals," "disadvantaged business enterprise," and "woman business enterprise" on pages 93 and 94. All bidders were given copies of the bid specifications before they prepared their respective bids.

      
      

   4. In response to the notice, and as is pertinent here, Petitioners, Vito's Trucking and Excavating Company and Frank V. Louis Equipment Company (Vito), and Respondent-Intervenor, Triple R Paving, Inc. (Triple R), prepared and submitted bids on the project. 3/ Vito, which has its principal offices in Fort Myers, Florida, submitted a total bid of $6,458,918. Triple R, a firm located in Fort Lauderdale, Florida, submitted a bid in the amount of

      $6,557,913, or some $99,000 higher than the bid submitted by Vito.

      
      

   5. The DBE/WBE Utilization Form No. 1 submitted by Vito with its bid indicated the following firms would be used as DBE subcontractors on the project:

      
      

      1. Tate Transport & Equipment, Inc. $300,000 4.64 percent

      2. Battle Construction Company 370,000 5.70

      3. Merl's Original Nursery 214,500 0.38

      4. Advance Barricades & Signing, Inc. 91,500 1.42

      
      

      These subcontract prices totaled 12.14 percent of Vito's total contract bid. On the DBE/WBE Utilization Form No. 1 submitted by Triple R, Community Asphalt Corporation (Community) was listed as being a subcontractor who would perform

      $800,000 of work, or 12.2 percent of its bid amount. Triple R also listed Advance Barricades & Signing, Inc. (Advance) as a subcontractor on the project, but the use of Advance was not necessary to achieve the 12 percent goal.

      
      

   6. On July 25, 1984 DOT opened the sealed bids and immediately began a review to determine if each bidder had complied with the 12 percent DBE goal. A review of Vito's bid revealed that Vito failed to meet the DBE requirements and

      that its bid was accordingly nonresponsive. The disqualification was required since Vito had allotted 1.42 percent of its work to Advance and Advance was not a certified DBE when the contract was let. This in turn reduced Vito's DBE percentage to 10.75, or below the 12 percent goal. Because of this, the bid of the next lowest bidder, Triple R, was accepted by the Department. A DOT bids award committee later voted 6-1 to reject Triple R's bid and relet the contract on the ground Triple R's bid exceeded Vito's by more than 1 percent. This decision was overruled by the Secretary of Transportation and Triple R was designated as the lowest and most responsive bidder on September 4, 1984. That prompted the instant proceeding.

      
      

   7. On the evening before the bids were to be filed with DOT (July 24, 1984), the estimator for Vito (Angelo Speno) went to Tallahassee where he received additional subcontractor quotes necessary to complete the firm's bid proposal form. Speno obtained a number of quotes from minority subcontractors desiring to work on the project. After receiving these quotes, and discussing the matter with Vito's president in Fort Lauderdale by telephone, Speno completed Vito's Utilization Form No. 1. Among those listed as a DBE was Advance Barricades and Signing, Inc. Advance is owned by four Caucasian women and is certified by DOT as a woman business enterprise (WBE). However, it is not certified as a DBE. Advance's estimator, Martin Yount, approached Speno on the evening of July 24 and gave a $91,500 quotation for providing "roadside signing" on the project. Yount also advised Speno that Advance was a "female- owned" organization, a certified BE, and that if the project had "female goals," this form would aid Vito in achieving that goal.

      
      

   8. Despite the bid specifications clearly distinguishing between a DBE and WOE, for some reason Speno did not distinguish between the two, and thinking that Advance was a male Hispanic organization, he used Advance to meet its DOE goal. Accordingly, Vito did not submit documentation to show it had made a good faith effort to utilize DOE firms on the project since it believed the 12 percent goal had been net. Because of this, DOT properly rejected its bid.

      
      

   9. Vito now contends that another certified subcontractor listed on its Utilization Form 1 (Tate Transport & Equipment, Inc.) will actually perform more work than is listed on the Form thereby increasing its total DOE percentage on the job to over 12 percent. However, since June, 1984 DOT rules have required that all DBE's be correctly listed at the time the bid is submitted. To permit amendments after the bid has been filed would encourage "bid shopping" and permit an apparent low bidder to evade the award of a contract if he saw fit to do so.

      
      

   10. Vito also contends Community is not a legitimate DOE even though certified by DOT. Accordingly, it asserts that Triple R likewise failed to meet the 12 percent DOE goal. In this regard, Vito has not initiated a proceeding challenging the certification, but relies instead solely upon a letter sent to DOT by Community on May 10, 1984 reflecting a change of ownership and control in the firm. But the letter in question merely reflects a change in officers and directors of the corporation, and no evidence was submitted to support the allegation that Community is no longer a DOE within the meaning of DOT rules.

       
       

   11. DOT has consistently treated compliance with the DOE rules as a material part of the competitive bidding process. It is DOT's policy and practice to reject a bid where the bidder fails to meet the DOE goals and fails to turn in a good faith package. Therefore, DOT's reserved right to waive technical errors in bid documents does not apply in the case at bar.

       CONCLUSIONS OF LAW

       
       

   12. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes.

       
       

   13. Petitioners basically contend that the error in their submission is of minor technical nature, and does not give them a competitive advantage over other bidders, and was not the result of collusion, bad faith, fraud or other misconduct. As such, they contend that DOT can waive the irregularity, find substantial compliance with the bidding requirements on the part of Petitioners, and designate Vito as the lowest responsible bidder.

       
       

   14. The "irregularity" which Vito claims is minor and technical in nature involves a specific requirement in the bid specifications that a contractor use DBE's on at least 12 percent of the total bid price, or submit evidence of a good faith effort to meet that goal. No matter which alternative is chosen, it must be submitted at the time the bids are filed with DOT. Rule 14-7803(2)(b), Florida Administrative Code, became effective on May 23, 1984, and is controlling herein. It provides in clear and unambiguous terms that "[f]ailure to satisfy these [DBE] requirements shall result in a contractor's bid being deemed nonresponsive and the bid being rejected." The evidence discloses that Vito failed to meet the DBE goals in its bid submission, and correspondingly failed to submit documentation evidencing a good faith effort on its part to satisfy those goals. According to DOT policy under the foregoing rule, the deviation is considered material in nature, and not one which can be waived as a technical irregularity. Under these circumstances, the case of Harry Pepper & Associates, Inc. v. City of Cape Coral, 352 So. 2d 1190 (Fla. 2d DCA 1977) is significant, for it held that an apparent low bidder could not amend a facially nonconforming bid to correct or cure minor irregularities. See also E. M. Watkins & Co., Inc. v. Board of Regents, 414 So. 2d 583 (Fla. 1st DCA 1982) (holding that strong policy reasons dictate that an apparent low bidder cannot correct a defect in its bid by supplying additional information after the bids have been submitted.) Therefore, to now allow Vito to correct a material error after its bid had been submitted would contravene Department rules and policy as well as controlling judicial precedent.

       
       

   15. Petitioners' reliance upon the recent agency decision in Badgett Resources, Inc. v. DOT & Capeletti Brothers, Inc., DOAH Case No. 83-1655, Final Order entered January 5, 1984, is misplaced. That case dealt with rules governing minority business enterprises which have since been repealed, and which authorized corrective action by a bidder after his bid had been filed with DOT. Therefore, it has no application to the case at bar.

       
       

   16. The evidence introduced by Petitioners fails to demonstrate that the subcontractor used by Triple R does not meet DOT's criteria for certification as a DBE. Accordingly, their contention that Triple R did not satisfy the 12 percent DBE goal is rejected.

       
       

   17. It is concluded that Vito's bid was nonconforming with the bid specifications in a material respect, and was accordingly nonresponsive and should be rejected. Because of this, Triple R submitted the lowest responsive bid, and should be awarded the contract for the Griffin Road project.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioners' formal protest and petition for formal

proceedings be DENIED, and that the contract for the Griffin Road project be awarded to Triple R Paving, Inc., which submitted the lowest responsible bid on said project.

DONE and ORDERED this 14th day of December, 1984, in Tallahassee, Florida.

DONALD R. ALEXANDER

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 December, 1984.

ENDNOTES

1/ Triple R filed a petition to intervene in this cause on October 30, 1984. This petition was granted by the undersigned by order dated November 7, 1984.

2/ Subsection 339.081(4), Florida Statutes, requires that "[n]ot less than 10 percent of the amounts expended from the State Transportation Trust Fund . . . be expended with small business concerns owned and controlled by socially and economically disadvantaged individuals." On this particular project, DOT increased this goal to 12 percent.

3/ Vito's Trucking and Excavating Company & Frank V. Louis Equipment Company are two separate corporations but are owned by the same principals and do essentially the sane type of work. They submitted a single bid on behalf of both corporations, and have accordingly been treated as a single entity for purposes of considering their protest herein.

COPIES FURNISHED:

Kenneth G. Oertel, Esquire 6146 Lewis State Bank Building

Tallahassee, Florida 32301-1879

Robert I. Scanlon, Esquire Haydon Burns Building, MS-58 Tallahassee, Florida 32301

F. Alan Cummings, Esquire Post Office Drawer 810 Tallahassee, Florida 32302

Docket for Case No: 84-003436

Orders for Case No: 84-003436