STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PROFESSIONAL LEASING & )

DEVELOPMENT CORP., )

)

Petitioner, )

)

vs. ) CASE NO. 86-0788BID

) DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

For Petitioner: Harold Pridgen

Pensacola, Florida

For Respondent: Larry D. Scott, Esquire

Department of Transporation Tallahassee, Florida

This matter was heard upon short notice, by agreement of the parties, on March 14, 1986 by William R. Dorsey, Jr., the Hearing Officer designated by the Division of Administrative Hearings. The Department has filed Proposed Findings of Fact and Conclusions of Law. Specific rulings on each proposed finding of fact can be found in the Appendix to this Recommended Order.

ISSUE

The issues in this bid protest proceeding are

1. whether the bid of Professional Leasing & Development Corporation on state project, job number 48020-3543, was properly rejected for failure to prequalify to bid on the project; and

   
   

2. whether the Department properly rejected the bid failure to:

   
   

   1. meet disadvantaged business enterprise ("DBE") requirements in soliciting minority subcontractors to work on the project, or

   2. make a good faith effort to meet the DBE goals set for this project?

FINDINGS OF FACT

1. Professional Leasing & Development Corporation ("Professional") filed a bid on state project, job number 4802 0-3543, which was opened on January 22, 1986 for work on an intersection in Escambia County. The only other bidder was Edward M. Chadbourne, Inc., which the Department declared the lowest responsible bidder, and which declined to participate in these proceedings after notice.

2. The parties stipulated at the hearing that the bids submitted by both bidders were in due form and were submitted in a timely fashion.

   
   

3. The parties also stipulated that the Department posted its bid tabulation on March 3, 1986, designating Chadbourne as the lowest responsible bidder, and a timely protest was filed by Professional following that posting.

   
   

4. This job is the first Department of Transportation job on which Professional has submitted a bid. It had not prequalified to bid on the job. Warnings appear on pages one and seven of the bid blank that if the bid amount is greater than $150,000, the contractor must be prequalified. The bid blank clearly states in large print on page 7 that if the contractor is not prequalified and the bid is in excess of $150,000, the bid will be rejected.

   
   

5. The bid package submitted by Professional was for a total contract amount of $149,973.68. This amount contained errors in the prices for certain items in the bid. These resulted from Professional's errors in the extension of the unit price for items 300 1 3, tack coat; 5331 2, type s asphaltic concrete; and 5337 1 5, asphaltic concrete friction course. The errors are small, aggregating $76.32. The total amount of the bid, as corrected by the unit prices given by Professional in its bid blank, is $150,050. The bid was rejected by the Department for failure to prequalify.

   
   

6. When preparing its bid, Professional made efforts to meet the DBE goal set by the Department of Transportation of 8 percent of the contract amount. It sought bids from two minority businesses for striping, and for guardrail and paved ditches,the second of which was a bid from a women's business enterprise which is not considered in meeting the DBE goal. Additional efforts might have been made to obtain DBE subcontract bids by the other principal in the corporation, William Stubstad, but the testimony at the final hearing did not indicate what those efforts may have been. Neither are they reflected in the bid documents.

   
   

7. On the DBE/WBE utilization form number 1 submitted with the bid, Professional listed eight potential subcontractors; the striping subcontractor had been certified by the Department of Transportation as a DBE. Written by hand at the bottom of the form was the statement "no other local DBEs in area." Professional's bid reflected only a 3.2 percent utilization of DBE subcontractors, while the goal set by the Department was 8 percent of the contract amount. Based on this submittal, the Department found inadequate documentation of a good faith effort to meet the DBE goal and rejected the bid. Many other subcontractors are certified as DBEs by the Department for work such as signs, guardrails, landscaping and paved ditches. Professional's bid documents give no evidence that these other firms had been solicited to submit bids.

   
   

   CONCLUSIONS OF LAW

   
   

8. The error in the extension of the unit prices makes the total amount of the bid $150,050.00. The front page of the bid blank states that it is to "accompany the Standard Specifications Edition of 1986." According to Section

   3.1 of those specifications, the Department checks the extensions of the unit prices, and if an error is made in a calculation, the proper extension of the unit price given in words by the bidder controls. As Professional admitted during the hearing, it was not prequalified at the time its bid was submitted. It is now in the process of doing so. Although the correct bid amount is only

   $50.00 above the prequalification threshold, prequalification is required under

   Section 337.14(2), Florida Statutes (1985) "in order to bid on a road, bridge, or public transportation construction contract of more than $150,000." The observation of the United States Supreme Court in U.S. Railroad Retirement Board v. Fritz, 449 U.S. 166 (1980) is equally applicable here:

   
   

   "The `task of classifying persons for... benefits... inevitably requires that some persons who have an almost equally strong claim to favored treatment be placed on different sides of the line,' Mathews

   v. Diaz, 426 U.S. 67, 83-84, 48 L.Ed.

   2d 478, 96 S.Ct. 1883 (1976), and the

   fact that the line might have been drawn differently at some point is a matter for legislative, rather than judicial consideration." 449 U.S. at 179.

   
   

   The bid submitted by Professional was properly rejected as irregular by the Department for lack of prequalification.

   
   

9. Professional's argument that DBE goals should be called "requirements" rather than "goals" if the Department is going to hold a contractor to attaining them if the bid is to be accepted misses the point. The goals are not hard and fast requirements which, if not met, mandate rejection of the bid on that basis alone. Rather, if the goals are not met, the Department must evaluate the materials submitted in the bid package on DBE/WBE utilization form number 1, and in other accompanying documentation required by Chapter 14-78, Florida Administrative Code, to determine whether the efforts required by that chapter of the Department's rules have been made by the contractor. Even if no rules had been promulgated by the Department, the efforts which Professional's bid documents disclose of contacting only two minority firms to solicit subcontract bids probably would not have been sufficient. once the Department adopted Chapter 14-78, Florida Administrative Code and specifically prescribed the efforts which must be made in order to be regarded as having made a good faith effort to meet DBE contract goals, actions falling short of those efforts require rejection of the bid. The rejection is not for failure to meet the goal,- but for failure to do those things which the rule requires for attempting to meet the goal. This places all bidders on the same footing, because they all must undertake the same efforts to obtain minority subcontractors.

   
   

10. The Department has adopted Chapter 14-78, Florida Administrative Code, so that the legislative mandate in Section 339.0805(1) Florida Statutes(1985), that "not less than ten percent of the amounts expended from the State Transportation Trust Fund shall be expended with small business concerns owned and controlled by socially and economically disadvantaged individuals" will be met. The statute directs the Department to use "every means available to it, including, but not limited to, goals and set-asides for competitive bidding and contracting only by, between, and among those firms which were certified by the Department as socially and economically disadvantaged business enterprises which are prequalified as may be appropriate.", Id.

    
    

11. Professional has acquired more experience with the Department's bidding process, which should assist it making those efforts required by the statutes and rules governing competitive bidding for projects funded under the State Transportation Trust Fund when preparing future bids.

12. The Department of Transportation properly rejected Professional's bid on the grounds that the materials submitted in the bid did not demonstrate those good faith efforts to meet DBE goals as required by Chapter 14-78, Florida Administrative Code.

RECOMMENDATION

It is recommended that the protest of Professional Leasing and Development Corporation be rejected, and the contract be awarded to Edward M. Chadbourne, Inc.

DONE AND ORDERED this 2nd day of April 1986 in Tallahassee, Leon County, Florida.

WILLIAM R. DORSEY, JR.

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 2nd day of April, 1986.

APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 86-0788BID

The following constitute my specific rulings pursuant to Section 120.59(2), Florida Statutes (1985) on the proposed findings of fact submitted by the parties.

Rulings on Proposed Findings of Fact Submitted by Petitioner: No proposed findings of fact were submitted.

Rulings on Proposed Findings of Fact Submitted by Respondent:

1. Covered in Findings of Fact 1 and 5.

2. First sentence is covered in Findings of Fact 3 and 5; the remainder of the proposed finding is covered in Conclusion of Law 1.

3. Generally covered in Finding of Fact 4.

4. The portion of the proposal dealing with Standard Specifi- cation 2-1, 1986 Edition, is rejected because that section was not placed in evidence at the hearing, nor was

leave requested to file that specification after the hearing.

1. Covered in Finding of Fact 5.

2. Covered generally in Conclusions of Law 2 and 3.

3. Covered in Conclusion of Law 6.

4. Rejected on the grounds that Section 2-5.3.2 of the Supplemental Special Provision of the Bid Specifications was not proven at the final hearing, nor was leave requested to file them as an exhibit after the hearing.

5. Covered in Finding of Fact 7.

6. Covered in Finding of Fact 7.

7. The portion of proposal 10 found on page 4 is covered in Finding of Fact 7; the remainder is rejected as cumulative.

8. Covered in Finding of Fact 7.

9. Rejected because there is no evidence in the record concerning the consistency with which the Department requires full compliance with DBE goals, and because no issue was raised in this proceeding by Professional with respect to inconsistency in Department policy, making the finding irrelevant.

COPIES FURNISHED:

Thomas E. Drawdy Secretary

Department of Transportation Hayden Burns Building Tallahassee, Florida 32301

A. J. Spalla, Esquire General Counsel

Department of Transportation Hayden Burns Building Tallahassee, Florida 32301

Larry D. Scott, Esquire Department of Transportation Hayden Burns Building Tallahassee, Florida 32301

Harold Pridgen President

Professional Leasing & Development Corp.

25 East Nine Mile Road Pensacola, Florida 32514

Edward M. Chadbourne, Inc. 4375 McCoy Drive

Pensacola, Florida 32503

Docket for Case No: 86-000788BID

Orders for Case No: 86-000788BID