STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
JAMES P. GILLS and MARGARET R. GILLS, )
)
Petitioners, )
)
vs. ) CASE NO. 86-3504BID
)
DEPARTMENT OF HEALTH AND )
REHABILITATIVE SERVICES, and )
KOGER PROPERTIES, INC., )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a hearing was held in this cause on September 30, 1986, in St. Petersburg, Florida, before Diane A. Grubbs, a Hearing Officer with the Division of Administrative Hearings.
APPEARANCES
For Petitioners: J. Wiley Davis, Esquire
Taylor, Brion, Buker & Greene Post Office Box 11189 Tallahassee, Florida 32302-3189
For Respondent HRS: Barbara Ann Dell McPherson, Esquire
Department of Health and Rehabilitative Services
2255 East Bay Drive Clearwater, Florida 33546
For Respondent Stephen D. Lobrano, Esquire Koger Properties: Lobrano & Kincaid
121 West Forsyth Street, Suite 810 Jacksonville, Florida 32202
ISSUES
Whether the Department of Health and Rehabilitative Services (HRS) acted in an arbitrary and capricious manner in determining to award the bid for its district office to Koger Properties, Inc. (Koger) and whether the petitioner submitted the lowest and best bid under the terms of the bid specifications.
BACKGROUND
The petitioners filed a Petition for Formal Hearing to Protest Intended Award of Lease No. 590:1784. The petition alleged that the petitioners submitted the lowest bid and complied in all material respects to the Invitation to Bid (ITB) and therefore should have been awarded Lease No. 590:1784. The petition further alleged that HRS arbitrarily and capriciously applied the
evaluation criteria to the detriment of petitioners. The petition was referred to the Division Of Administrative Hearings on September 5 1986.
At the hearing, petitioners presented the testimony of Mr. Vincent Kane, the investment manager for petitioners who was responsible for the preparation and submittal of petitioners' bid proposal. Also testifying on behalf of petitioners, as adverse witnesses, were Mr. Samuel Kinsey, Financial and Accounting Director for HRS, District V; Ms. Patricia Bell, Program Head of Aging and Adult Services for HRS, District V; and Mr. Robert J. Withrow, District Administrative Services Director, District V, HRS. Petitioners' Exhibits 1 through 8 and 12 were admitted into evidence. Petitioners' Exhibits
9 through 11 were withdrawn by petitioners. HRS Exhibits 1 through 6 were admitted into evidence.
Petitioners and HRS timely filed proposed findings of fact and conclusions of law; however, petitioners' proposed findings of fact do not comply with Rule 22I-6.31, Florida Administrative Code, in that they are not supported by citations to the record. A ruling on each proposed finding of fact has been made in the appendix to this order.
FINDINGS OF FACT
GENERAL BACKGROUND - STIPULATED FACTS
Petitioners received a formal Invitation to Bid on Lease No. 590:1784 from HRS, District V. The purpose of the ITB was to obtain competitive proposals for the leasing of office space by HRS within a specifically defined area. Petitioners timely submitted their bid in response to the ITB.
All timely received bids were first evaluated to determine technical responsiveness. Petitioners' bid was determined to be responsive to the technical requirements of the ITB. Responsive bids were then presented to a bid evaluation committee for comparison and formulation of a recommendation for award. In comparing the various responsive bids and formulating a recommendation for award, the members of the bid evaluation committee were required to visit each proposed facility and to apply the evaluation criteria as contained in the ITB package.
By memorandum dated July 30, 1986, the bid evaluation committee recommended that the bid be awarded to Koger although petitioners submitted the lowest rental price.
On or about August 5, 1986, petitioners received notice from HRS of its intent to award Lease No. 590:1784 to Koger. By letter dated August 6, 1986, petitioners notified HRS of their intent to protest the intended award of Lease No. 590:1784 to Koger. The Notice of Intent to Protest was timely filed pursuant to the provisions of Section 120.53(5), Florida Statutes, and Rule 10- 13.11, Florida Administrative Code. Thereafter, the petitioners timely filed their formal written protest.
Petitioners are substantially affected by the decision of HRS to award the lease to Koger.
THE BIDDING PROCESS
The Department of Health and Rehabilitative Services issued an Invitation to Bid and Bid Submittal Form (ITB) seeking approximately 39,968 net
rental square feet of office space in Pinellas County, Florida, to be used as the district administrative offices.
The ITB set forth the method in which the bids would be evaluated as follows:
EVALUATION OF BIDS
Bids received are first evaluated to determine technical responsive- ness. This includes submittal on bid submittal form, inclusion of required information and data, bid signed and notarized, etc. Non responsive bids will be withdrawn from further consideration.
Responsive bids are presented to a bid evaluation committee for com- parison and formulation of a recom- mendation for award. This is accomplished by a visit to each proposed facility and application of the evaluation criteria. The committees recommendation will be presented to the department's official having award authority
for final evaluation and determin- ation of successful bidder.
EVALUATION CRITERIA
The successful bid will be that one determined to be the lowest and best.
All bids will be evaluated based on
the award factors enumerated in the bid submittal form.
The ITB also provided that "the department agrees to enter into a lease agreement based on submission and acceptance of the bid in the best interests of the department and the state."
In accordance with the ITB a pre-bid conference was held on April 29, 1986; however, neither petitioners nor any representative of petitioners attended the pre-bid conference. Further, petitioners made no oral or written inquiries concerning the ITB or the evaluation criteria to be utilized.
Bids received from the following providers were determined to be responsive and presented to the bid evaluation committee for comparison and formulation of the recommendation for award:
James P. & Margaret R. Gills (1100 Building)
Koger Properties, Inc. (Koger)
LTBCLH Partnership (Justice Building)
Procacci Real Estate Management Co., Inc.
(ICOT Building)
Elizabethan Development, Inc. (Handy City Building).
BID EVALUATION COMMITTEE
The bid evaluation committee was composed of the following people who, along with their staffs, would occupy the leased property: Robert Withrow, Chairman of the Committee and District Administrative Services Director; Samuel Kinsey, Financial and Accounting Director for District V; Patricia Bell, Program Manager for Aging and Adult Services; Fredrick M. O'Brien, General Services, Manager for District V; and Pegi Hollingsworth, Personnel Officer.
Each member of the evaluation committee received a bid package consisting of the bid specifications and the bids submitted. Each member also received a bid evaluation sheet which was used to rate each bidder. They received no other instructions with regard to the evaluation criteria. Although each specific evaluation criterion was weighted, i.e., given a comparative value, the committee members were not specifically instructed as to how points should be assigned for each category.
The evaluation committee went to each of the proposed buildings for the purpose of making a comparative evaluation based on the evaluation criteria provided. However, the primary focus was on the Koger Building and the petitioners' 1100 Building because they had submitted the lowest rental rates of the five bidders considered. After the viewing process, the members of the committee, except Mr. Withrow, discussed the factors that should be considered in applying each of the evaluation criterion. Although the committee members had not formulated the evaluation criteria to be used, they were uniquely qualified to apply the evaluation criteria provided to the specific needs and requirements of the HRS offices that would occupy the building.
Though the committee members were in agreement as to the various factors to be included in each of the criterion listed, they did not discuss the points that would be awarded to each facility. Each member independently assigned points to each facility based on his or her own evaluation of the facility's comparative value in each of the listed categories.
Koger received the best evaluation from all five committee members with point totals of 98, 98, 98, 98 and 99 out of a possible 100 points. Petitioners' building was ranked last of the five buildings evaluated by four of the members, with point totals of 75, 77, 71 and 75, and fourth by Mr. Withrow with a total of 81 points.
Based on the comparative evaluation of the buildings, the committee recommended that the bid be awarded to Koger. By letter dated July 30, 1986, the District V office received authorization from the HRS Director of General Services to award the bid to Koger as being in the best interest of the department and state.
THE EVALUATION CRITERIA
The ITB included the evaluation criteria list used by the committee to ascertain the relative value of each building. At the top of the page it is stated:
The successful bid will be that one
determined to be the lowest and best. All bids will be evaluated based on the award factors enumerated...
The evaluation criteria are divided into three general areas: (1) Associated Fiscal Costs, (2) Location, and (3) Facility. Each general area includes subcategories, with each subcategory being given a total maximum value. Each of the criteria disputed by petitioners is discussed below.
1(a) Rental rates for basic term of lease. (Weighting: 45)
All of the bids received by HRS were within the rental limits established by the Department of General Services and also much lower than expected. Even the highest bid was lower than anticipated, and Koger's and petitioners' bids were considered especially desirable. The bids received, listed at present value for the ton year basic lease period, are as follows:
BIDDER | TOTAL COST | AMOUNT MORE THAN LOW BID |
1100 BUILDING | $1,881,690.1 | |
KOGER | 1,993,131.4 | $111,441.3 |
JUSTICE | 2,473,559.8 | 591,869.7 |
ICOT | 2,655,306.1 | 773,616.0 |
HANDY CITY | 3,223,202.0 | 1,341,511.9 |
Rental rates for the basic term of the lease were given a weighted value of 45. All of the committee members gave petitioners 45 points, as the low bidder, and all gave Koger 44 points as the next low bidder. However, four of the members simply agreed that the low bid would receive the maximum amount of points with each subsequent low bidder receiving one less point than the one before it, which resulted in the high bidder receiving 41 points even though its bid was 1.7 times greater than the low bid. Only Mr. Withrow made an attempt to prorate the points based on the differences in the amount bid, thus resulting in the high bidder receiving only 20 points. However, even Mr. Withrow awarded Koger 44 points based on the minimal difference between the Koger bid and the petitioners' bid.
Both Mr. Withrow and Mr. Kinsey explained the award of 44 points to Koger by comparing the difference in the amounts bid to the HRS District V budget or the budgets of the entities using the facilities. However, the purpose of the evaluation was to compare each facility to the other facilities. Thus, the award of points for rental rates should have been based on a comparison of the rates offered. Although it was reasonable to assign the maximum number of points to petitioners, as the low bidders, the amount of points assigned to the remaining bidders should have been based on a comparison of the amount of each bid to the low bid. This would have made a significant difference in the points awarded to Justice, ICOT, and Handy City; however, even using a strict mathematical computation would not significantly affect the points awarded Koger due to the minimal difference in Koger's bid and petitioners' bid. Koger would receive no less than 42 points, only 2 points less than awarded, regardless of the method of mathematical computation used.
1/
2(a) Proximity of offered space in central or preferred area of mad boundaries (Weighting: 5)
All the members of the committee agreed that Koger is in the most preferred area because its location is more accessible to the employees and the persons who visit the office than any of the other buildings. Koger is in northeast St. Petersburg, minutes from the interstate. The 1100 Building is located in a more congested area in downtown Clearwater on the extreme northern boundary of the designated area. In making a comparison Of the building locations, all of which were located within the map boundary, the committee jusifiably determined that the building that was the most strategically located, in terms of accessibility, would be considered to be in the most preferred area. Thus, Koger was awarded five points by all committee members. The 1100 Building received 2, 0, 1, 3 and 1 points.
Although all committee members awarded Koger the highest points, only one committee member resided closer to the Koger Building than the other buildings. Mr. Withrow, who lives closer to the 1100 Building than Koger, gave the 1100 Building only 1 point because it was more inaccessible to the district clients and employees. Further, the District Administrator, who approved the lease to Koger, resides closer to the 1100 Building.
2(b) Frequency and availability of satisfactory public transportation within proximity of the offered space (Weighting: 5)
Both Koger and the 1100 Building received the maximum of five points in this category except from Mr. Withrow who gave the 1100 Building four points. The committee members felt that the bus transportation as about the same for each building. Although the 1100 Building had more buses passing the facility due to its location in downtown Clearwater, the committee considered the destination of the buses and concluded that a person would wait the same length of time for a bus to take him to his destination from either the Koger Building or the 1100 Building. Mr. Withrow differed on the points awarded because he considered the Koger location to be better due to its proximity to the airport. The district office has a large number of people that visit from Tallahassee and other districts in the state.
2(c) The effect of environmental factors, including the physical characteristics of the building and the area surrounding it, on the efficient and economical conduct of departmental operations planned for the requested space. (Weighting: 3)
Koger received the maximum of 3 points from every committee member in this category; the 1100 Building received 0 points from every member. Although this category is listed within the general area of "Location", the committee members followed the category requirement and considered all environmental factors, including the physical characteristics of the building. In the 1100 Building, committee members noted problems with the air conditioning system and the elevators. The building was not maintained well, and the bathrooms were small and poorly ventilated. The HRS parking at the 1100 Building was not conveniently located. To get to the parking lot from the building an employee would have to cross a parking lot adjacent to the building, cross an intersection and then walk up to a block to get to his or her car. Many of the office employees work late and would be walking to their cars after dark, and there was concern expressed for employee safety considering the parking arrangement offered by petitioners. Koger had none of the problems observed at the 1100 Building. Further, Koger was better suited for the handicapped because there was no need to use a ramp as there was at the 1100 Building.
3(a) Conformance of space offered to the specific requirements contained in the Invitation to Bid. (Weighing: 10)
3(b) Susceptibility of the design of the space offered to efficient layout and good utilization.
(Weighting: 10)
3(c) Provisions of the aggregate square footage in a single building. Proposals will be considered, but fewer points given, which offer the aggregate square footage in not more than two locations...within 100 yards of each other.
(Weighting: 10)
Koger's bid is for a two-story building containing approximately 39,000 square feet. The 1100 Building is a 15-story building. It would provide approximately 39,000 square feet on the second, fourth, fifth, part of the eighth, part of the ninth, and twelfth floors. The space allocation in the 1100 Building, spread over 6 floors, would provide a major problem in efficiently locating the staff. Certain offices could not be placed on certain floors because of space restrictions, and related offices could not be placed in close proximity to each other. Offices that needed to be on the same floor could not be located on the same floor. Because the space offered by petitioners is spread over 12 floors, accessibility to related offices would be much more difficult. Further, the limited space per floor makes it more difficult for HRS to properly utilize the space provided.
None of the testimony provided by the committee witnesses related the "conformance of the space offered to the specific requirements contained in the Invitation to Bid" (e.s.) The ITB lists the offices and rooms required, giving sizes for each. Other than the total square footage, which petitioners met, there were no other specific requirements contained in the ITB. None of the committee members compared the conformance of the space offered to the specific room and office requirements. Indeed, the testimony of the committee members indicate that accessibility of the space was considered under criteria 3(a) rather than the conformance of the space to the ITB. Since the space offered by petitioners apparently complied with the requirements of the ITB, petitioners should have received 10 points for that category.
The points awarded under 3(b) and 3(c), however, were proper. The space offered by the 1100 Building is not susceptible to an efficient layout or good utilization of the space offered. Further, the committee legitimately differentiated between the single buildings offered by each bidder, under 3(c), by considering where the space was located within the building. Obviously, factor 3(c) reflects a concern that the space offered not be too separated. It clearly provides that proposals for space in two separate buildings will get fewer points than single building proposals, and there is no indication that all single building proposals should receive the same maximum points. This factor clearly relates to the proximity of the spaces offered to one another, with contiguous space getting the most points.
3(d) Offers providing street-level space (Weighting: 2)
Approximately half of the space offered by Koger is street-level space. Koger received two points. The 1100 Building provides no street-level space; it received no points in this category. Petitioners do not contend that they should have gotten any points, but assert Koger should only have gotten one point because not all its space was street-level space.
THE COMPARATIVE EVALUATION
The evaluation committee members were very conscientious in comparing the relative values of the buildings offered based on the criteria provided and their observations. Their evaluations were not made arbitrarily, but based upon the factors set forth in the evaluation criteria. Although errors were made in calculating the values awarded for categories 1(a) and 3(a), these errors were not due to arbitrary action by the committee members. Further, should the appropriate points under 3(a) be added to petitioners evaluations and three points be subtracted from Koger's evaluations (two points for 1(a) and one point for 3(d)), petitioners evaluations would be 79, 80, 76, 80 and 84, and Koger's would be 95, 95, 95, 95 and 96.
The strategic plan for HRS, 1986-1991, Goal 12, is to enhance employee morale and job satisfaction in several ways, one of which is to replace or upgrade 90 percent of substandard physical work environments by December 31, 1990. The testimony and evaluations show, and the committee members found, that the Koger Center would provide a better work environment than the petitioners' 1100 Building.
Based on the criteria set forth in the ITB, the Koger bid is the "lowest and best" bid.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding pursuant to Section 120.57(1), Florida Statutes.
Section 255.25(3)(a), Florida Statutes, prohibits a state agency from entering into any lease for the use of 2,000 square feet or more of space in a privately owned building except upon advertisement for and receipt of competitive bids and award to the lowest and best bidder. (e.s.)
Pursuant to Section 255.249(2)(b), Florida Statutes, the Department of General Services has the authority to promulgate rules providing procedures for soliciting and accepting competitive proposals for such leases and for evaluating the proposals received. Pursuant to this statutory mandate, the Department of General Services has promulgated Rule 13M-1.015, Florida Administrative Code.
Section 13M-1.015(3) entitled "Specifications" provides:
Specifications shall be drawn by the user agency in general terms.
They shall not be structured to favor any specific location or lessor.
Specifications provided to each prospective lessor should set forth... the following:
Approximate net square footage required...
An approximate floor plan of space needed...
General location of required space. (e.s.)
Section 13M-1.015(4), states that proposals "shall specifically respond but need not be limited to each item included in the specifications."
Section 13M-1.015(5) reads as follows:
Evaluation.
The user agency alone shall reserve the right to accept or reject any or all bids submitted and if necessary reinitiate procedures for soliciting competitive proposals.
The user agency, in conjunction with preparing specifications, shall develop weighted evaluation criteria.
The criteria items most significant
to the user agency's needs should bear the highest weight. Rental, using total present value methodology for basic term of lease applying the present value discount rate pursuant to Rule 13M-1.029; the cost of re- location, if any; consolidation of activities, if desirable; and any other factor deemed necessary should be weighted.
The evaluation shall be made by the user agency.
Selection (deemed to be the lowest and best bid) shall be made by the user agency.
Section 255.25(3)(a) and the rules promulgated by the department make it quite clear that the lowest bidder will not necessarily be the successful bidder. The bidder must be the lowest and best. The rules indicate that the determination of the best bidder must be made based on a comparative review of the facilities, using the weighted criteria as guidelines for evaluating each facility. The rules also indicate that the specifications and evaluation criteria should be set forth in general terms. The evaluation criteria must be stated in broad terms so that the competitive nature of the bidding process can be maintained. By using overly restrictive and specific criteria, an agency could easily manipulate the bidding process so that a preselected property would have to be evaluated higher than other bidders simply because the evaluation criteria were so narrowly drawn.
In the instant case, the evaluation criteria were stated in general terms, yet provided sufficient guidance to provide a fair comparison of the bids. The evaluation committee followed the evaluation criteria provided and at the hearing clearly articulated the reasons for the point variations among the buildings. The factors considered for each criterion were appropriate for the category except for categories 1(a) and 3(a). In determining the points to be awarded for rental rate, the committee erroneously compared the difference in cost of the bids to the HRS budget, rather than comparing the rental rates to each other to assess the comparative values of the bids. In the other case, the committee considered factors not included within the ambit of that criterion.
In the last category the committee considered the proper factor, i.e., the provision for street-level space, but did not sufficiently explain why Koger received two points, when only half of its offered space was at street-level, and another bidder, having all its offered space at street-level, also received two points. Since the purpose of the evaluation is to comparatively review the bids, comparative values must be assigned for each category unless there is no difference among the bidders in a particular category.
However, even after the point values are adjusted in these three categories, Koger's evaluations average 95.2 and petitioner's average 79.8 points. Thus, a comparative assessment of the facilities, based on the evaluation criteria included in the ITB and the evidence at the hearing, establish that the Koger bid is the lowest and best bid and that it would be in the best interest of the department and the state to award the bid to Koger. It is, therefore,
RECOMMENDED that the Department of Health and Rehabilitative Services enter a final order finding that the Koger Properties' bid is the lowest and best bid and awarding the lease for the district office in Pinellas County, Lease No.
590:1784, to Koger Properties, Inc.
DONE and ENTERED this 15th day of December, 1986, in Tallahassee, Florida.
DIANE A. GRUBBS
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 15th day of December, 1986.
ENDNOTE
1/ If the awards of points are determined by the percentage of low bid to the higher bid, petitioner's bid is 94.41 percent of Koger's bid and Koger would get
94.41 percent of 45 points or 42.48 points. If the evaluation is based on the comparison of the dollar difference of the two bids to the low bid, the
$111,441.30 difference equals 5.92 percent of petitioner's bid and Koger would receive 94.08 percent of the 45 points or 42.3 points. The first method is preferable as a true comparison of relative values since all bidders would receive points, whereas the second method would give no points to those bidders whose bids were over twice the low amount bid.
APPENDIX
The following constitute my rulings, by paragraph, of petitioners' proposed findings of fact
1 - 3 Accepted.
First sentence rejected as not supported by competent, substantial evidence (CSE), remainder accepted.
Accepted.
Accepted, except reject that actual cost figures are relevant as the ITB requires that they be reduced to present value for consideration.
Accepted.
Accepted to the degree relevant.
9 -10. Accepted.
Rejected, not a finding of fact.
Rejected as irrelevant and not supported by CSE. Only one member testified he had not participated in an evaluation before.
Accepted as stated in paragraph 12 of the recommended order (RO). The evaluation criteria provided were the guidelines to be used.
Accepted as stated in paragraph 12 and 13. 15-16. Accepted as stated in paragraph 18.
First sentence accepted; beginning of second sentence rejected as not supported by CSE, second half accepted.
Accepted, except last two sentences rejected as not supported by CSE.
First sentence rejected as not supported by CSE. Second sentence rejected as not supported by CSE,
several more other factors were considered as set forth throughout the RO.
Rejected as not supported by CSE.
Accepted.
Rejected as cumulative, as argument rather than factual finding and as argument not supported by CSE.
Accepted generally as stated in paragraph 20.
Rejected as cumulative and not supported by CSE, although accept generally sentences 3 and first part of 4.
Accepted 1st and 2nd sentence. Reject majority as cummulative, though accept that committee found Koger preferable to 1100 Building based on criteria provided. Accept that evaluations compared
buildings. Reject that members assigned weight to each criteria as not supported by CSE.
Reject as not supported by CSE to the degree it isn't cumulative.
Accept to the degree stated in paragraph 23.
Reject as cumulative percentage and not supported by CSE.
Accept except last part of last sentence as not supported by CSE.
30-31. Accepted generally as stated in paragraphs 24-26.
32. Accepted generally in paragraph 27.
Respondent HRS's Proposed Finding of Fact and Conclusions of Law 1-24. Accepted.
COPIES FURNISHED:
J. WILEY DAVIS, ESQUIRE POST OFFICE BOX 11189
TALLAHASSEE, FLORIDA 32302-3189
BARBARA ANN DELL MCPHERSON, ESQUIRE DEPARTMENT OF HEALTH AND
REHABILITATIVE SERVICES 2255 EAST BAY DRIVE CLEARWATER, FLORIDA 33546
STEPHEN D. LOBRANO, ESQUIRE SUITE 810
121 WEST FORSYTH STREET JACKSONVILLE, FLORIDA 32202
WILLIAM PAGE, SECRETARY DEPARTMENT OF HEALTH AND
REHABILITATIVE SERVICES 1323 WINEWOOD BLVD
TALLAHASSEE, FLORIDA 32301
Issue Date | Proceedings |
---|---|
Dec. 15, 1986 | Recommended Order (hearing held , 2013). CASE CLOSED. |
Issue Date | Document | Summary |
---|---|---|
Dec. 24, 1986 | Agency Final Order | |
Dec. 15, 1986 | Recommended Order | Respondent's bid is ruled as best bid based on a comparative assessment of the facilities and the evaluation criteria included in the Invitiation To Bid. |
KARL HEDIN vs DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, 86-003504BID (1986)
ECCELSTON PROPERTIES, LTD. vs. DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, 86-003504BID (1986)
ANTHONY P. CAMINITE vs. DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, 86-003504BID (1986)
CARMON S. BOONE vs. DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, 86-003504BID (1986)
VITO`S TRUCKING AND EXCAVATING COMPANY, ET AL. vs. DEPARTMENT OF TRANSPORTATION, 86-003504BID (1986)