STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HEWITT CONTRACTING COMPANY, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 88-2898BID

) STATE OF FLORIDA, DEPARTMENT ) OF TRANSPORTATION, )

)

Respondent, )

and )

)

VOGEL BROS. BUILDING CO., )

)

Intervenor. )

)

RECOMMENDED ORDER

A hearing was held in this case in Tallahassee, Florida on June 30, 1988, before Arnold H. Pollock, Hearing Officer. The issue for consideration was whether Vogel Brothers Building Co., awardee of Department of Transportation Project No. 105003631, is a qualified bidder.

APPEARANCES

For Petitioner: Crit Smith, Esquire

215 South Monroe Street Tallahassee, Florida 32301

For Respondent: Brant Hargrove, Esquire

605 Suwannee Street

Tallahassee, Florida 32302

For Intervenor: Ronald E. Cotterill, Esquire

1519 North Dale Mabry, Suite 100

Lutz, Florida 33544 BACKGROUND INFORMATION

On May 9, 1988, Respondent, Department of Transportation, gave notice of its intent to award project No. 105003631, a minor bridge construction project in Hillsborough County, Florida, to Vogel Brothers Building Co., the apparent low bidder. On May 20, 1988, the second low bidder, Hewitt Contracting Company, Inc., filed a formal protest with the Department of Transportation and, on June 8, 1988, the matter was forwarded to the Division of Administrative Hearings for the appointment of a Hearing Officer. One week later, the awardee, Vogel Brothers Building Co., filed its motion to intervene, which was granted, and on June 16, 1988, the matter was set for hearing by the undersigned for June 30, 1988, at which time it was held as scheduled.

At the hearing, Petitioner presented the testimony of Charles W. Goodman, an Area Engineer and Qualification Engineer for the Department of Transportation; Andrew M. Clark, an expert in minor bridge construction and vice president of a construction company dealing in heavy bridge construction; Cecil

1. Barrett, president of a construction company and expert in minor bridge construction; and Howard H. Hewitt, owner and manager of Petitioner company. Petitioner introduced Petitioner's Exhibits 1 through 4.

   
   

   Respondent presented the testimony of Thomas S. Kayser, Pre-qualification Engineer for the Department of Transportation, and introduced Respondent's Exhibit A. Intervenor presented the testimony of Daniel G. Vogel, vice President of Intervenor company, by deposition which was introduced as Intervenor's Exhibit I.

   
   

   Subsequent to the hearing, a transcript was filed. All parties submitted proposed Findings of Fact which have been ruled upon in the Appendix to this Recommended Order. Petitioner submitted its own and Respondent and Intervenor made a joint submittal.

   
   

   FINDINGS OF FACT

   
   

   1. Both Hewitt Contracting Company, Inc., (Hewitt), and Vogel Brothers Building Company, (Vogel), submitted a bid on Florida Department of Transportation, (FDOT) project number 105003631, for the construction of a minor bridge in Hillsborough County, Florida.

      
      

   2. Both Hewitt and Vogel had been pre-qualified by FDOT to bid on its projects, The determination of pre-qualification was done for FDOT by Charles Goodman, a registered professional engineer. Pre-qualification is not done on a project by project basis but instead is determined on a particular work category in advance.

      
      

   3. Vogel was low bidder for the project in issue and Hewitt was second low bidder. Hewitt timely filed a notice of protest and formal protest based on its claim that Vogel was not properly pre-qualified for minor bridge construction.

      
      

   4. Vogel has no experience building bridges for FDOT or for any other state and the instant project was the first project for FDOT in which Vogel had bid as a prime contractor. However, the company has been in business in Wisconsin since the 1920's and has performed numerous construction projects at various locations throughout the country. Those that have required heavy pouring of concrete have been primarily parking garages, pedestrian walkways, and wastewater treatment plants. Within those types of categories, several construction techniques were used which are similar if not identical to those used in bridge building. Vogel has, however, no pile driving experience which would be used in this project.

      
      

   5. Vogel does not own all of the equipment that would be necessary to construct this project. Ownership is not required, however, so long as the applicant is willing and able to provide the equipment through other means such as lease or rental. Though Vogel has presented no evidence of specific rental agreements, it has the financial capacity to rent the required equipment and there is little doubt it could do so.

      
      

   6. By the same token, Vogel does not currently employ any personnel in Florida who have experience in the construction of bridges similar to the project under consideration nor does the company presently employ any

      professional engineers totally registered as such in Florida. It does, however, employ professional engineers registered elsewhere with experience that would be pertinent to this project and, as it has done in the past, would, if necessary, bring those personnel to Florida to assist in this project.

      
      

   7. During the time Mr. Goodman was performing as a qualification engineer, he reviewed all 900 contractors doing business with FDOT at least twice and some, three times. In performing the qualification review, he looked only at the applications of the various contractors and did not talk to any of the company representatives. By the same token, he did not discuss the applications with anyone in the department. The decision on approval was his alone.

      
      

   8. Mr. Goodman was aware of Vogel's prior experience and the fact that it had constructed several pedestrian overpasses and recognized that the company's experience with the classical type bridge such as is involved here is limited. However, he was satisfied that while Vogel does not own all of the equipment necessary for completion of this project, it does own enough equipment to complete part of the work and the remainder of the items on the FDOT equipment list which it does not own, it can procure from outside sources.

      
      

   9. He is also aware of the fact that Vogel does not have any experience driving piles of the size required for this project. It does, however; do mass pours of concrete and is involved in larger construction projects such as water and sewage treatment plants. Most of its experience is in the construction of commercial buildings in Wisconsin.

      
      

   10. In his analysis, Mr. Goodman used an evaluation sheet in conjunction with the table contained in Rule 14-22, F.A.C., to come up with an ability factor. This does not, however, have any substantial impact on approval. In the instant case, out of a possibility of 25 points, Vogel was awarded 0 points on bridge construction as it pertained to both completed and ongoing projects. In fact, Vogel was awarded points only in those experience areas not related to bridge projects. As to organization and management, it received 10 points in each out of a possible 15 points for each. These awards related to the company's skills in general. Since Mr. Goodman's consideration was based only on what was contained in the application, he does not know if any personnel have experience in constructing bridges as are called for in this project. His decision was based on his conclusion that Vogel had done similar work on other projects equivalent to the least of the qualifications for bridges, (pedestrian overpasses, parking garages, and water plants), which involved techniques similar to those used in construction of the least complex bridge. This information upon which Mr. Goodman relied came from Vogel's brochure and he is not personally aware of the projects or when and where they were constructed.

       
       

   11. The FDOT policy was to require an applicant to meet the equipment and experience even for minor bridges, and in this case, in Mr. Goodman's opinion, Vogel, which had built box culverts which are legally defined as a minor bridge at a low level, qualified.

       
       

   12. In making their analyses, FDOT evaluators are required to look at minimums, not optimums, and Vogel's experience, in the opinion of Mr. Goodman, satisfied the requirements at the lowest level. Even though this project involved procedures it had not previously done, Vogel's qualification was determined on the basis of general requirements and not on the basis of the specific requirements of this project which had not been identified at the time qualification was established. Mr. Goodman did not verify any of the statements made in Vogel's application with Vogel or any other individual, nor did he

       attempt to contact any reference or other party to inquire regarding Vogel's ability to construct the project.

       
       

   13. Mr. Goodman's decision to qualify Vogel was reviewed, prior to the hearing, by Mr. Kayser, the current qualification engineer for FDOT. He looked at Vogel's application and based on what he saw, (their ability to procure the required equipment; the types of projects they have completed in the past; and the intricate techniques involved therein), is of the opinion that Vogel is capable of completing this project successfully. If he were doing a qualification evaluation on Vogel today, he might require some verification of certain items, and request evaluations of the quality of the work they have done, but that would be all. The fact that most of the work Vogel has done is out of the state does not bother him, nor does the fact that the contractor is from out of state. Many of the successful contractors with whom FDOT has done business are in the same category. Had Vogel built only buildings, he might have had some concern. However, the diversity of their projects, including many where the work and techniques used are similar to that used in bridge construction, makes him comfortable with them, and he would not attempt to decertify or disqualify Vogel.

       
       

   14. In support of Petitioner's point of view, Mr. Andrew Clark, executive vice president of a general contracting firm specializing in heavy bridge construction, feels Vogel does not have the experience to construct bridges, major or minor. While it can pour concrete, it does not have the people qualified and necessary to do bridge work. There is more to building a bridge than pouring concrete and Vogel does not appear, to Mr. Clark, to have the experience or equipment sufficient to properly finish the concrete surface. For example, though it might be able to rent a screed, it does not have the people qualified to use it properly. It does not have the experience to drive piles and it does not have the equipment necessary to do that job nor do its proposed suppliers of rental equipment. Mr. Clark, however, is a competitor and was, in fact, a bidder on this project. In the event the award to Vogel is set aside and a re-bid authorized, Mr. Clark's company would be in a position to bid again.

       
       

   15. Mr. Clark also looked at the equipment listed in Vogel's brochure and determined that most of the equipment on that list is not used in construction of either major or minor bridges. By the same token, the projects listed on Vogel's experience list do not qualify it to do bridge work since they are not similar and the techniques utilized therein are not necessarily the same.

       
       

   16. Mr. Clark is of the opinion that the project in issue is not the typical minor bridge project. The design is somewhat different and requires the use of different techniques. He feels Vogel's experience would not prepare it to successfully accomplish the project. Though FDOT follows up its award by numerous inspections during the construction phase, in his opinion these inspections are inadequate since they generally relate to the materials being used by the contractor and not to the contractor's workmanship.

       
       

   17. Mr. Clark's opinions are supported by those of Mr. Barrett, president of another construction company which deals primarily in bridge construction.

       In Mr. Barrett's opinion, Vogel's experience in construction of water and sewage treatment plants and parking garages does not qualify it to build bridges since the company has no expertise in the techniques need for that type of construction.

   18. Petitioner has been qualified to do minor bridge construction since 1962 and has constructed approximately 75 minor bridges within this state. It's personnel include numerous people who have extensive experience in pouring bridge decks and driving bridge pilings. It has the needed equipment, including cranes, pile drivers, welding equipment, and screeds, and more important, the experienced people who know how to use it properly.

       
       

   19. Having reviewed Vogel's prior projects and equipment owned, Petitioner's owner, Mr. Hewitt, cannot see where Vogel is qualified by experience or equipment to do bridge construction. In his opinion, Vogel is a building contractor, not a bridge builder. He is satisfied that the skills developed in general contracting do not qualify an individual to do bridge work. These skills are different, and the level of subcontracting is different. In addition, construction standards and tolerances are much stricter in bridge projects than in other general contracting projects.

       
       

   20. Petitioner raises a legitimate question regarding Vogel's ability to do this particular job. However, it's evidence is in the form of testimony of individuals who, though individuals of long experience in their fields, were not offered as experts in the area. Further, all except one, have an interest in the outcome of this case. On the other hand, Vogel has been shown to be a competent and successful builder and there is no evidence to show that the pre- qualification process utilized by FDOT here was either inappropriate or improperly applied.

       
       

       CONCLUSIONS OF LAW

       
       

   21. The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this case. Section 120.57(1), Florida Statutes.

       
       

   22. Petitioner has standing to protest the award of the subject contract to the intervenor, Capeletti Bros. v. State Department of General Services, 432 So.2d 1359 (Fla. 1st DCA 1983), and Petitioner timely filed its notice of protest and its formal protest.

       
       

   23. Florida's pre-qualification process is provided for in Rule 14-22, F.A.C.

       
       

   24. The parties stipulated that the project in issue here is a minor bridge as defined by Rule 14-22.003(2)(b), F.A.C. At Rule 14-22.003(2)(h), F.A.C., the Department has provided:

       
       

       The department considers the applicant 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 a specific class of work.

       
       

   25. Under the provisions of Rule 14-22.002(3), F.A.C., the applicant is required to list in his application each major item of equipment owned by it with make and model shown. Letters of intent to rent equipment or statements of availability of equipment from affiliated companies may be used for obtaining classes of work.

       
       

   26. In addition, Rule 14-22.0041, F.A.C., outlines the factors which the department must consider in determining competency for qualification and

       mandates the department to make such inquiries and investigations as are deemed necessary to verify the applicant's statements and to determine whether the applicant is competent, responsible, and financially capable to be qualified.

       Among these factors are that the applicant possess the necessary organization and management along with experience to do the job; that it have adequate equipment to do the work; and that it demonstrate a satisfactory work performance record.

       
       

   27. Applicants who have not qualified within the past two years, (Vogel), must provide letters of recommendation from at least two firms who have knowledge of the applicant's key personnel and work performance sufficiently detailed to assist in rating the applicant's ability to do the job under consideration.

       
       

   28. An additional requirement is that applicants who have not qualified in the past two years be rated as to organization and management and work experience. FDOT has, based upon the information presented to it by the applicant, made the determination that Vogel should be qualified. The agency has wide discretion in accepting bids for public improvement. When the discretion is exercised honestly, the agency's decision will not be overturned even if it may appear erroneous and even if reasonable persons may disagree. Liberty County v. Baxter's Asphalt Concrete, 421 So.2d 505 (Fla. 1982). Here, there is room for question regarding whether Vogel's experience qualifies it for bridge construction work of even a minor nature. Nonetheless, the evidence shows that the company is an old and reputable firm which has been active in the construction business for better than 60 years. It's reputation is good and there was no showing that any misconduct or circumstances exist which would make it necessary that Vogel be disqualified. As Mr. Kayser indicated, while he may not have made the decision to grant qualification initially, based on what he has seen, he could not and would not attempt to decertify or disqualify the company. Further, there was no showing that the department's action was motivated by any dishonest or venal considerations.

       
       

   29. In light of the above, there appears to be no basis for concluding other than that Vogel Brothers Building Company is a responsible bidder.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore:

RECOMMENDED that a Final Order be entered awarding the contract on State Project No. 105003631 to Vogel Brothers Building Company.

RECOMMENDED this 24th day of August, 1988, at Tallahassee, Florida.

ARNOLD H. POLLOCK, 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 24th day of August, 1988.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-2898BID

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case.

FOR THE PETITIONER

1. & 2. Accepted and Incorporated herein

3. & 4. Accepted and Incorporated herein

5. - 8. Accepted and Incorporated herein

1. Accepted except for the statement that letters from rental companies were not submitted

2. & 11. Accepted and Incorporated herein

12. - 14. Accepted and Incorporated herein

1. Accepted but not probative of any material fact

2. & 17. Accepted but not probative of any material fact

1. Accepted but incomplete

2. Rejected as contra to the weight of the evidence

3. Rejected as a comment on the evidence and not a Findings of Fact

4. Accepted but not probative of any material fact

5. Rejected as irrelevant

6. & 25. Rejected as contra to the weight of the evidence

7. Accepted but not probative of any material fact FOR THE RESPONDENT AND INTERVENOR

1. & 2. Accepted and incorporated herein

3. & 4. Accepted and incorporated herein

1. & 7. Accepted and incorporated herein

2. Accepted and incorporated herein

1. Accepted

2. & 11. Accepted and incorporated herein

3. Accepted

1. Accepted and incorporated herein

2. Not established

3. Accepted but not probative of any material fact

4. Accepted and incorporated herein

5. Accepted and incorporated herein

COPIES FURNISHED:

Crit Smith, Esquire

215 South Monroe Street Tallahassee, Florida 32301

Brant Hargrove, Esquire Department of Transportation 605 Suwannee Street

Tallahassee, Florida 32302

Ronald E. Cotterill, Esquire 1519 North Dale Mabry, S-100 Lutz, Florida 33544

Kaye N. Henderson, Secretary Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399-0450

Thomas H. Bateman, III General Counsel

Department of Transportation

562 Haydon Burns Building 605 Suwannee Street

Tallahassee, Florida 32399-0450

Docket for Case No: 88-002898BID

Orders for Case No: 88-002898BID