STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

THE COLUMBUS COMPANY, )

)

Petitioner, )

)

vs. ) CASE NO. 85-2525

) DEPARTMENT OF TRANSPORTATION, ) STATE OF FLORIDA, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by it duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above-styled case on August 13, 1985, at Tallahassee, Florida.

APPEARANCES

For Petitioner: Geoffrey McClure Johnson, Esq.

Lewis and McKenna

82 East Allendale Road

Saddle River, New Jersey 07458

For Respondent: Larry D. Scott, Esq.

Department of Transportation Haydon Burns Building Tallahassee, Florida 32301

By letter dated July 12, 1985, The Columbus Company, Petitioner, protests the rejection of its bid on State Job No. 70225-3410. Petitioner's low bid on this project was declared non-responsive by the Florida Department of Transportation (DOT), Respondent, because Petitioner failed to meet the Disadvantaged Business Enterprise (DBE) requirements of the contract.

At the hearing Petitioner called one witness, Respondent called two witnesses, and nine exhibits were admitted into evidence. There is no dispute regarding the facts in this case.

Proposed findings have been submitted by the parties. To the extent those proposed findings are included herein they are adopted, otherwise, they are rejected as not supported by the evidence, cumulative, or unnecessary to the results reached.

Proposed conclusions of law inconsistent with those contained herein are rejected.

FINDINGS OF FACT

1. On May 29, 1985, The Columbus Company submitted a bid to construct a rest area along I-95 in accordance with the specifications for State Job No. 70225-3410. The bid documents required the bidders to have 10 percent subcontractors from DBEs or submit documentation with the bid to show good faith efforts to meet this 10 percent requirement were made if the 10 percent goal is not met.

   
   

2. Respondent maintains a list of businesses qualifying as DBEs and periodically publishes a directory of those firms so qualifying. This latest directory published by DOT prior to the bid opening on the contract at issue here was April 15, 1985. Respondent's Bureau of Minority Affairs maintains a current register and will advise any bidder so requesting whether of not a firm qualifies as a DBE or WBE.

   
   

3. The invitation to bid provides the contractor's bid submission shall include the following information:

   
   

   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 towards DBE and WBE goals.

      
      

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

      
      

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

      
      

   4. If the DBE or WBE goal is not met, sufficient information to demonstrate that the contractor made good faith efforts to meet the goals.

4. Oscar Pope was Petitioner's estimator on this bid and prepared the bid which was submitted. Pope sent letters to various DBE firms soliciting their participation as subcontractors in the project and put ads in the newspaper. Prior to submitting the bid Pope realized that he did not have the required 10 percent DBE participation and he contacted another company to inquire where he could get additional minority participation from truckers and was referred to UPF Trucking. Pope contacted UPF Trucking and Billy Montgomery of UPF told Pope that UPF could qualify as a MBE. Pope did not check the directory or call DOT to verify UPF Trucking's status as a MBE. In his bid submitted, which included DBE/WBE utilization form No. 1, Pope listed UPF Trucking as being certified by Florida DOT as a MBE. Including the subcontract Petitioner entered into with UPF Trucking brought the MBE participation to the 10 percent goal required by the contract and no documentation was submitted to demonstrate Petitioner had made good faith efforts to reach the required DBE goals but could not do so.

   
   

5. Upon the opening of the bids for this project, Petitioner was the low bidder. When the MBE participation listed in the bid was checked, UPF Trucking was found to be not qualified as a MBE firm. UPF Trucking was not listed in the April 15, 1985, directory of qualified minority businesses or on any approved list maintained by DOT. Had Pope called DOT before submitting Petitioner's bid, he could have learned UPF Trucking was not a qualified MBE.

   
   

6. Petitioner's bid was forwarded to DOT's technical review committee and good faith efforts committee and both of these committees recommended the bid be found non-responsive because of the failure to meet the DBE goal. The bid was declared non-responsive and the contract was awarded to the next lowest bidder.

   
   

   CONCLUSIONS OF LAW

   
   

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

8. Rule 17-78.03(2)(b)4., F.A.C., provides:

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. Failure to satisfy these requirements shall result in the contractor's bid being deemed non- responsive and the bid being rejected.

1. Petitioner's bid did not meet the DBE requirements and no documentation was submitted to show good faith efforts had been made to meet the DBE goals. Casual inquiry to determine if a firm is qualified as a MBE does not constitute due care when DOT's minority business office was open and available to provide adequate information on firms which qualify as MBEs. When Petitioner's bid failed to meet the minority goals and no documentation of good faith efforts was submitted to justify such failure, the bid was non-responsive.

   
   

2. In its proposed recommended order Petitioner contends that, since the Notice of Hearing listed the issues as whether or not Petitioner was the lowest responsible bidder on this job, the responsiveness of the bid was not an issue. This position overlooks the fact that Petitioner was notified its bid was rejected as being non-responsive. Petitioner's attempt to create a distinction between responsible bidder and responsive bid is without merit. Petitioner could establish itself as a responsible company yet submit a bid that did not satisfy the specifications in the bid offer. In such a case the bid is non- responsive and the bidder is not the lowest responsible bidder as that term is used 1n government contracts. By failing to comply with the bid requirements for MBE participation, the bid submitted by Petitioner was non-responsive and Petitioner was, therefore, not the lowest responsible bidder.

From the foregoing it is concluded that The Columbus Company's bid on State Job No. 70225-3410 was non-responsive by reason of failure to meet DBE goals and must be rejected. It is

RECOMMENDED that the protest of The Columbus Company be dismissed..

ENTERED this 1stday of October, 1985, at Tallahassee, Florida.

K. N. AYERS Hearing Officer

Division of Administrative Hearings Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301 904/488-9675

FILED with the Clerk of the Division of Administrative Hearings this 1st day of October, 1985.

COPIES FURNISHED:

Geoffrey McClure Johnson, Esq. Lewis and McKenna

82 East Allendale Road

Saddle River, New Jersey 07458

Larry D. Scott, Esq. Department of Transportation Haydon Burns Building, M.S. 58 Tallahassee, Florida 32301

Thomas E. Drawdy, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301

Docket for Case No: 85-002525

Orders for Case No: 85-002525