Judges: K. N. AYERS
Agency: Department of Transportation
Latest Update: Apr. 09, 1986
Summary: Factual issue regarding eligibility for certification.
86-0314.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
SUPERIOR PAVING, INC., )
)
Petitioner, )
)
vs. ) CASE NO. 86-0314BID
) STATE OF FLORIDA, DEPARTMENT ) OF TRANSPORTATION, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings by duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above styled cause on March 4, 1986, at Tallahassee, Florida.
APPEARANCES
For Petitioner: Robert Trohn, Esquire &
Ralph Artigliere, Esquire Post Office Drawer J Lakeland, Florida 33802
For Respondent: Mel L. Wilson, Esquire
Department of Transportation Hayden Burns Building Tallahassee, Florida 32301
By letter dated January 23, 1986, Superior Paving, Inc., Petitioner, contests the denial by the Department of Transportation (DOT), Respondent, of its application to prequalify for work classes "Minor-Bridge, Hot Plant-mixed Bituminous, Fencing, Grassing, Seeding and Sodding." As grounds for denying the requested qualification the DOT stated that Petitioner had not shown it had the equipment and experienced personnel to construct Minor Bridge and Portland Cement Paving projects. Respondent further required Petitioner to show that the company accomplishes fencing, grassing, seeding and sodding projects with its own forces and equipment. In order to be qualified for Hot Plant-mixed Bituminous Respondent required the company have its own asphalt plant.
At the hearing Petitioner called seven witnesses, three of whom are employees of DOT, Respondent called two witnesses and twenty exhibits were admitted into evidence. The parties stipulated that if Secretary Drawdy was deposed he would testify that he was secretary of DOT, that he was aware of and concurred with the policy of DOT in denying qualifications to Petitioner, and that he was aware of the facts contained in exhibit 5, 6, and 7 which were presented to DOT.
Proposed findings submitted by the parties have been considered. Treatment accorded those findings are as shown in exhibit A attached hereto and made a party hereof.
FINDINGS OF FACT
On or about December 16, 1985, Petitioners submitted an application requesting qualifications in five major classes of work and two incidental classes of work. At the hearing, qualification in cement paving was not pursued.
The Department denied the applications for qualification to bid on contracts for Minor Bridges, Portland Cement Concrete, Hot Plant-mixed Bituminous Base and Surface courses, and the two incidental classes of fencing and grassing, seeding and sodding. Petitioner here contests the Minor Bridge, Hot Plant-mixed Bituminous Base and Surface courses and the two miscellaneous categories.
Superior Paving has been in the road building business for many years and the sole basis for denying qualification for Hot Plant-mixed Bituminous Base and Surface courses is that Superior does not own an asphalt plant. During the years Petitioner has worked in road construction for DOT its work has been satisfactory, contracts have been completed on time, and there has been no default.
Petitioner has the financial ability to perform the work for which qualification is requested and has experienced personnel necessary for this work. With respect to construction work on minor bridges, Petitioner's general manager and superintendent both have extensive experience in this work area. During the past two years, Petitioner has done no work on DOT projects as the result of a two year suspension for a contract crime. Prior thereto on DOT construction involving minor bridge work in which Superior was the prime contractor, this work was subcontracted out to a contractor specializing in bridge construction. However, Superior has the resources to obtain all equipment needed for minor bridge work.
Also Petitioner has been the successful bidder on jobs involving fencing as well as grassing, seeding and sodding. Petitioner has used this type work to meet its quota for subcontracting at least ten percent of the job to minority and female subcontractors. On one occasion when the sodding subcontractor failed to complete the project, Petitioner used its own personnel and equipment to do so. Petitioner's request for qualification for these incidental classes was denied because its application failed to show that the company accomplished fencing, grassing, seeding and sodding with its own forces and equipment. (Exhibit 14.)
Most of the evidence submitted in these proceedings involved the denial of qualification for the type work that has been Petitioner's primary category for many years, viz. asphalt paving. The sole reason for denying Petitioner qualification in this class of work is that Petitioner does not have its own asphalt plant (Exhibit 14.) This requirement imposed by Respondent is a recent one which was placed into effect in 1985 following the amendment to Rule 14-
22.03 F.A.C. That amendment added "and the adequacy of equipment to perform the specific classes of work." At the time this change to the rule was made DOT was applying the policy of requiring a contractor to own an asphalt plant in order to qualify for this work class. When asked why this unwritten policy was not
included in the rule when amended in 1985, the witnesses involved in incorporating the change involving equipment into the rule replied he could not answer that.
The policy of DOT that in order to qualify for asphalt paving the bidder must own an asphalt plant has general applicability and has been applied during the past year to all contractors bidding on DOT road projects.
DOT personnel who testified in these proceedings stated the purpose of adding the phrase regarding having the necessary equipment to the requirement for qualification, was to bring the rule more in line with the statutory provisions. The adverse publicity DOT received in recent years because of contractor delays in completing projects and deficiencies in some of the work performed resulted in the tightening of the requirements for qualification.
Two contractors in particular were late in completing contracts on which they were successful bidders and part of the delay was due to their inability to get the necessary road paving material. However, both of these contractors owned asphalt plants. One had delays in getting a permit from the Department of Environmental Regulation to erect a plant near Destin, Florida, and the other had a falling out with his supplier and could not get the required material. In neither of these cases did the ownership of an asphalt plant alleviate the problem. No evidence was presented showing that a delay in the completion of a project was due solely to the failure of the contractor to have his own asphalt plant.
Several asphalt producers submitted letters to the effect that they had supplied paving material to Petitioner for many years and would continue to supply him as much as he would buy. One plant owner testified that he had been in the production and laying of asphalt pavement for many years and much preferred to have the role only of supplier. He also testified that most producers felt the same way.
There is no policy or rule requiring contractors who bid on jobs requiring the use of road aggregates to have their own rock quarry in order to qualify for this work class.
Petitioner has the necessary equipment to transport mix from the plant to the job site and to install the mix at the job site. Hot Plant-mixed Bituminous Base and Surface courses can be successfully trucked approximately 60 miles from the plant. Accordingly, under DOT's policy, a successful bidder will frequently have to erect an asphalt plant near the job site. This will require him to obtain permits and negotiate the environmental problems associated therewith.
The effect of not being qualified for Minor Bridge and Hot Plant-mixed Bituminous classes is that Petitioner is not qualified to bid as a prime contractor when one or more of these classes, in the aggregate, comprises fifty percent or more of the work.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and subject matter of, these proceedings.
The pertinent Agency policy requires the ownership of an asphalt plant before one can qualify to bid on a paving contract in excess of $150,000. This
unwritten policy must be defended by the agency each time it is challenged. McDonald v Department of Banking and Finance, 346 So 2d 569 (Fla. 1st DCA 1977). This is a heavy burden , the policy carried with it no presumption of validity, and the need and authority for the policy must be sufficiently explained for agency review. Barker v Board of Medical Examiners, 428 So.2d 720 (Fla. 1st DCA) 1983).
Rule 14-22.03(2)(h), F.A.C., is the authority given for this unwritten policy. This rule provides:
The Department will consider qualifying an applicant only in the specific class or classes requested by the applicant and will qualify
the applicant for the specific class or classes for which the Department considers the appli- cant to be qualified based on the evaluation
of the applicant's organization, management, work experience, and work performance and the adequacy of equipment to perform the specific classes of work. (Emphasis supplied.)
The 1985 amendment to this rule added the part underlined. Authority for Rule 14-22.03, F.A.C., is Sec. 337.14(1), Fla. Stats. (1985), which provides in pertinent part:
Any person desiring to bid for the performance of any construction contract in excess of
$150,000 which the department proposes to let must first be certified by the department as qualified pursuant to this section and the rules of the department. The rules of the department shall address the qualifications of persons to bid on construction contracts in excess of $150,000 and shall include require- ments with respect to the equipment, past record, experience, financial resources, and organizational personnel of the applicant.
Equipment is generally considered to be personal property as distinguished from real property. Webster's New Collegiate Dictionary (1977) defines equipment as... (1): the implements used in an operation or activity : APPARATUS (2): all the fixed assets other than land and buildings of a business enterprise (3): the rolling stock of a railway b: a piece of such equipment.
Under this definition and the generally understood meaning of equipment an asphalt plant is not equipment. Even though these plants can be disassembled and moved from place to place, once assembled and functioning as an asphalt plant it is real property and not equipment. Accordingly, a duly promulgated rule to this effect could be found to be invalid as not authorized by the statute upon which it is purportedly based.
Where the non-rule policy attempted to be implemented has not been promulgated as a rule the agency has a greater burden of showing the non-rule policy is necessary to carry out the agency's functions and responsibilities. The evidence here submitted fails to show that the failure of a successful bidder on a DOT construction project to have its own asphalt plant contributed to the failure of the contractor to complete the job in the time allotted. All
of the delays that resulted in adverse publicity for DOT, and which the tightening of qualifications standards was designed to correct, were caused by factors unassociated with the ownership of an asphalt plant.
Denial of Petitioner's application for qualification in minor bridge class work was predicated largely on the fact that Petitioner had done no minor bridge work during the past three years, (two of which Petitioner was suspended) and sub-contracted out this work the last time it performed such work for DOT. Petitioner has the necessary qualified personnel and the financial ability to acquire all equipment needed when, and if, it is the prime contractor on such a job.
Similarly, denial of the application for those incidental work classes was denied because the records indicate Petitioner has not done this work with its own forces and equipment. No evidence was submitted that one of these incidental classes will exceed fifty percent of the cost of the project, nor was evidence presented that any benefit would accrue to DOT or the job would be better accomplished if this type work was done by the prime contractor on a road paving project with his own forces and equipment.
From the foregoing it is concluded that the agency policy requiring a contractor to own an asphalt plant as a precondition to qualification to bid on jobs involving hot plant-mixed Bituminous Base and Surface courses is not authorized by statute or rule and therefore cannot be applied to this project. It is
RECOMMENDED that a final order be entered qualifying Petitioner in work classes Minors Bridges, Hot Plant-mixed Bituminous Base and Surface courses, Fencing, and Grassing, Seeding and Sodding.
ENTERED this 9th day of April, 1986, at Tallahassee, Florida.
K. N. AYERS Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 9th day of April, 1986.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-0314
Treatment accorded proposed findings of fact submitted by Petitioner:
Included in Hearing Officer finding No. 1.
Accepted. Not included as immaterial.
Included in Hearing Officer finding No.3 and 4.
Included in Hearing Officer finding No. 6.
Included in Hearing Officer finding No. 9.
Rejected as fact. Accepted as conclusion of law.
Included in Hearing Officer finding No. 3.
Included in Hearing Officer finding No. 3 and 4.
Included in Hearing Officer finding No. 13.
Treatment accorded proposed findings submitted by Respondent.
Accepted as legal requirement.
Included in Hearing Officer finding No. 1.
Included in Hearing Officer finding No. 2.
Accepted.
Included in Hearing Officer finding No. 13.
Included in Hearing Officer finding No. 6.
Included in Hearing Officer finding No. 6.
Included in Hearing Officer finding No. 6 and 7.
Accepted. Not included as immaterial.
Included in Hearing Officer findings No. 6 and 7.
Included in Hearing Officer finding No. 6.
Accepted. Insofar as not included in Hearing Officer finding No. 6, 7, and 8, this proposed finding is rejected as not material.
Covered in Hearing Officer finding No. 4.
Covered in Hearing Officer finding No. 4.
Covered in Hearing Officer finding No. 5.
Rejected as not relevant.
Accented insofar as included in Hearing Officer finding No. 7.
COPIES FURNISHED:
Cecelia M. Moore, Esquire Post Office Drawer J
202 East Walnut Street Lakeland, Florida 33802
Mel L. Wilson, Esquire Department of Transportation Haydon Burns Building M.S. 58 Tallahassee, Florida 32301
Ralph Artigliere, Esquire Post Office Drawer J Lakeland, Florida 32802
Thomas E. Drawdy, Secretary Department of Transportation Hayden Burns Building Tallahassee, Florida 32301
Docket for Case No: 86-000314BID
Orders for Case No: 86-000314BID
