STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

1. E. WALLACE CONSTRUCTION CORPORATION, )

   )

   Petitioner, )

   )

   vs. ) CASE NO. 89-6844BID

   )

   FLORIDA BOARD OF REGENTS, )

   )

   Respondent, )

   and )

   )

   ANGLIN CONSTRUCTION COMPANY, )

   )

   Intervenor. )

   )

   
   

   RECOMMENDED ORDER

   
   

   Pursuant to notice, a formal hearing was held in this case on January 18, 1990, in Tallahassee, Florida, before the Division of Administrative Hearings, by its designated Hearing Officer, Diane K. Kiesling.

   
   

   APPEARANCES

   
   

   For Petitioner: C. Gary Moody

   Attorney at Law

   Post Office Drawer 2759 Gainesville, Florida 32602

   
   

   For Respondent: Jane Mostoller

   Assistant General Counsel Gregg A. Gleason

   General Counsel

   Florida Board of Regents

   325 West Gaines Street Suite 1522

   Tallahassee, Florida 32399-1950

   
   

   For Intervenor: Raymond M. Ivey

   Attorney at Law

   703 North Main Street Suite A

   Gainesville, Florida 32601 STATEMENT OF THE ISSUES

   The issues are whether the Petitioner, D.E. Wallace Construction Corp., is the lowest responsive bidder on project BR-116; whether the Respondent, the Florida Board of Regents, correctly rejected the bid submitted by the Petitioner; and whether the bid on BR-116 should be awarded to the Intervenor, Anglin Construction Company.

   PRELIMINARY STATEMENT

   
   

   The Petitioner presented the testimony of Donald E. Wallace. The Respondent presented the testimony of Larry Ellis, Patricia Jackson, and Murdock Shaw. The Intervenor presented the testimony of Dennis Ramsey. Joint Exhibits 1-9 were admitted in evidence.

   
   

   The transcript of the proceedings was filed on February 9, 1990. All three parties timely filed proposed findings of fact and conclusions of law. All proposed findings of fact and conclusions of law have been considered. A specific ruling on each proposed finding of fact is made in the Appendix attached hereto and made a part of this Recommended Order.

   
   

   FINDINGS OF FACT

   
   

   1. Respondent issued a Call For Bids, in Florida Administrative Weekly, Volume 15, No. 38, September 22, 1989, for a construction project referred to as the Reitz Union Addition, BR-116, University of Florida. The Call For Bids provided that at least 15 percent of the project contract amount would be expended with minority business enterprises certified by the Florida Department of General Services as set forth under the Florida Small and Minority Business Assistance Act, Chapter 287, Florida Statutes. If 15 percent were not obtainable, the State University System would recognize good faith efforts by the bidder.

      
      

   2. The Call For Bids provided that all bidders must be qualified at the time of their Bid Proposal in accordance with the Instructions to Bidders, Article B-2. The Instructions to Bidders, Article B-2, provides in pertinent part that in order to be eligible to submit a Bid Proposal, a bidder must meet any special requirements set forth in the Special Conditions of the Project Manual.

      
      

   3. The Project Manual Index provides that "L-Special Conditions" pages are numbered separately.

      
      

   4. The Project Manual, Instructions to Bidders B-23, as revised by Section L, Special Conditions, Supplement #1, at supplement page 2, provides that the contract will be awarded by Respondent for projects of $500,000 or more, to the lowest qualified bidder, provided it is in the best interest of the Respondent to accept it. The award of the contract is subject to the provisions of Section 237.0945, Florida Statutes, and the demonstration of "good faith effort" by any bidder whose Bid Proposal proposes less than 15 percent participation in the contract by MBEs. Demonstrated good faith effort as set forth in the Special Conditions would be in lieu of all or part of the 15 percent requirement. The contract award will be made to the bidder that submits the lowest responsive aggregate bid within the preestablished construction budget. The aggregate bid shall consist of the base bid plus accepted additive alternate bids, or less accepted deductive alternate bids, applied in the numerical order in which they are listed on the bid form.

      
      

   5. The Project Manual, Instructions to Bidders, B-25 at page 17, provides that the Respondent/Owner has adopted a program for the involvement of minority business enterprises in the construction program. The application of that program is set forth in the Special Conditions of the Project Manual. The

      Project Manual, Instructions to Bidders, B-26 at page 17, provides that bidders shall be thoroughly familiar with the Special Conditions and shall strictly adhere to their requirements.

      
      

   6. A representative from D.E. Wallace Construction Corp., Ms. Betsy Wallace, attended the pre-solicitation/pre-bid meeting on October 5, 1989. One of the purposes of the pre-solicitation/pre-bid meeting was to explain the MBE program to the general contractors and others in attendance. Mr. Larry Ellis, the minority purchasing coordinator for the University of Florida, provided the contractors with information as to how they could obtain the 15 percent minority participation requirement or how they could satisfy the requirements of the good faith effort. Mr. Ellis informed those in attendance that the listing of subcontractors form required that the bidder reveal the 15 percent MBE participation on the face of the form, that such form was located in the Special Conditions section, and that the form must be completed and submitted at the time of bid opening, if in fact the general contractor was seeking to show he or she had met the 15 percent participation requirement.

      
      

   7. Sealed bids for BR-116 were opened on October 19, 1989. Petitioner was the lowest monetary bidder. Anglin Construction Company, Intervenor, was the second lowest monetary bidder.

      
      

   8. Petitioner was notified by letter dated October 24, 1989, that its bid proposal was found not to be in compliance with the requirements of the Project Manual because an incorrect list of subcontractors form was submitted, that Petitioners proposed MBEs were not identified at the time of bid opening, and that Petitioner failed to show a good faith effort in meeting the 15 percent MBE participation.

      
      

   9. By letter dated October 30, 1989, the University of Florida recommended to the Respondent that the construction contract for BR-116 be awarded to the Intervenor for the base bid and alternates 1 through 9 in the amount of $991,272

      
      

   10. The Project Manual for BR-116 contains Section L, Special Conditions, which contains Supplement 1, with pages numbered supplemental pages 1 through

1. The Call for Bids provides that bids must be submitted in full and in accordance with the requirements of the drawings and Project Manual. The Project Manual provides that bidders are required to examine carefully the drawings, specifications, and other bidding documents and to inform themselves thoroughly regarding any and all conditions and requirements that may in any manner affect the work. Mr. D.E. Wallace testified that he is a certified general contractor licensed by the State of Florida for 13 years and that as part of his licensing examination he was required to demonstrate proficiency in reading and understanding bidding documents, manuals, instructions, plans, and drawings. Mr. Wallace testified that he skimmed over the Project Manual and the Special Conditions section but that he really did not review them.

   
   

2. Petitioner submitted its list of subcontractors on an outdated form, dated January 20, 1988, contained in the Project Manual at Section D, page 21. In Supplement #1 of Section L, Special Conditions, at page 1, of the Project Manual, the bidder is instructed to delete the January 29, 1988, version of the subcontractors form and substitute in lieu thereof the List of Subcontractors form included in the Supplement dated June 15, 1988. The form was revised to allow contractors who could not meet the MBE requirements to show good faith effort in obtaining participation, to restrict MBEs, to those certified by the

   Florida Department of General Service, and to eliminate any bid shopping attempts by requiring that contractors reveal their MBE participation at the timed of the bid opening.

   
   

3. Petitioner admitted that the wrong list of subcontractors form was used when its bid was submitted.

   
   

4. The Respondents Project Manual contains a licensed version of a standard American Institute of Architects (AIA) document which could not be revised without AIA permission. The revised list of subcontractors form and revised MBE requirements were placed within the Special Conditions section of the Project Manual, which did not require AIAs permission. It is not unusual, in the construction industry, have supplemental or special conditions within a project manual.

   
   

5. The construction budget for this project was $1,096,800.

   
   

6. Petitioner did not submit its MBE subcontractors at the time of bid opening. Petitioner submitted its MBE plan on October 26, 1989, seven days after bid opening.

   
   

7. Petitioners MBE subcontractor participation was less than 15 percent of the contract sum required for BR-116. The contract sum is comprised of the base bid and the alternates for the project.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction of the parties to and subject matter of these proceedings. Sections 120.53(5) and 120.57(1), Florida Statutes.

   
   

9. Section 240.209(3)(n), Florida Statutes, provides in pertinent part, that the Board of Regents shall adopt rules to administer a program for the maintenance and construction of facilities in the State University System.

   
   

10. The Florida Board of Regents promulgated Rule 6C- 14.021(2), Florida Administrative Code, which provides in pertinent part:

    
    

    (2) In order to be eligible to submit a bid proposal, a firm must, at the time of receipt of bids:

    * * *

    (d) Meet any special prequalification requirements set forth in the project specifications, including compliance with requirements for minority business enterprise participation.

    * * *

    (5) All projects will be publicly bid in accordance with the provisions in the project specifications. Except for informalities which may be waived by the Chancellor or designee, or by the university president or designee for Minor Projects, a bid which is incomplete or not in conformance with the requirements of the specifications shall be determined to be non-responsive and shall be

    rejected. Award of contract will be made to the firm determined to be qualified in accordance with these rules which submits the lowest and best priced proposal for the work except that if it is in the best interest of the State, all bids may be rejected and the project may be bid again.

    
    

11. The burden of proof to establish that it is entitled to the award of the contract is upon the unsuccessful party. Florida Department of Transportation v. J.W.C. Co., Inc., 396 So.2d 778 (Fla. 1st DCA 1981). The challenging party has the burden to establish that the agency's award resulted from illegality, fraud, oppression, or misconduct and was not the result of a fair, full, and honest exercise of the agency's discretion. Liberty County v. Baxter's Asphalt and Concrete, Inc., 421 So.2d 505 (Fla. 1982); Bay Plaza I v. Dept. of Health and Rehabilitative Services, 11 FALR 2854 (April 11, 1989).

    
    

12. An agency has broad discretion in soliciting and accepting bids, and a decision based on the honest exercise of its discretion may not be overturned by a court even if reasonable people may disagree with the outcome. C.H. Barco Contracting Co. v. Department of Transportation, 483 So.2d 796 (Fla. 1st DCA 1986); Liberty County v. Baxter's Asphalt and Concrete, Inc., 421 So.2d 505 (Fla. 1982).

    
    

13. The APA provides the procedural mechanism for challenging an agency's decision to award or reject bids. "[T]he scope of the inquiry is limited to whether the purpose of competitive bidding has been subverted. In short, the hearing officers sole responsibility is to ascertain whether the agency acted fraudulently, arbitrarily, illegally, or dishonestly." Department of Transportation v. Groves-Watkins, 530 So.2d 912, 914 (Fla. 1988).

    
    

14. It is well established that the responsiveness of a bid is determined as of the time the bids are made public. Palm Beach Group, Inc. v. Department of Insurance and Treasurer, 10 FALR 5627, 5634 (Fla. Dept. of Insurance, 1988); Harry Pepper & Associates v. City of Cape Coral, 352 So.2d 1190 (Fla. 2nd DCA 1977).

    
    

15. The Board of Regents, in the good faith exercise of its discretion, determined that Petitioners bid was not responsive as submitted. Petitioner failed to use the correct list of subcontractors form and failed to reflect its MBE subcontractor participation requirements at the time of bid opening as required by the Instructions to Bidders. Instead, Petitioner submitted its proposed MBE participation plan seven days after the date of bid opening, in contravention of the Instructions to Bidders and the Special Conditions of the Project Manual. In E.M. Watkins & Company, Inc. v. Board of Regents, 414 So.2d

    583 (Fla. 1st DCA 1982), the Court held that a bidder could not submit subcontractor information after 48 hours of the bid opening. The Court further declared that substituting subcontractors (bid shopping) should be discouraged by requiring a list of subcontractors prior to the bid opening. Id. at 587. The policy reason behind requiring a list of subcontractors is to prevent the unfair bidding advantage one contractor derives from his failure to list required subcontractors. Requiring the list of subcontractors at the bid opening prevents competitive advantage, insures the quality of the subcontractors, insures public confidence in the bidding process, and encourages future competition. Id at 587.

16. A bid which contains a material variance is unacceptable. Tropabest Foods, Inc. v. Dept. of General Services, 493 So.2d 50 (Fla. 1st DCA 1986).

    
    

17. It is within the discretion of the Board of Regents whether or not to reserve the right to grant a waiver of bid irregularities. Liberty City v. Baxter's Asphalt and Concrete Inc., supra. Even when an agency reserves the right to waive bid irregularities, it is within the agency's discretion to determine whether or not a waiver is appropriate. Id.

    
    

18. Failure to identify MBE subcontractor participation as required by the Board of Regents bidding documents is a material defect of the bid and should not be waived. See E. M. Watkins and Company v. Board of Regents, supra.

    
    

19. An agency may not waive a material irregularity in a bid. Robinson Electrical Co., Inc. v. Dade County, 417 So.2d 1032 (Fla. 3rd DCA 1982); Harry Pepper & Associates v. City of Cape Coral, supra.

    
    

20. The application of the above criteria establishes that the failure of the Petitioner to submit the proper list of subcontractors form identifying its proposed MBEs on the face of the form at the time of bid opening and the failure to demonstrate good faith efforts in meeting the MBE require is a material irregularity. The Board of Regents may not waive the deficiency.

    
    

21. Petitioner argues that the forms provided in the Call For Bids are contradictory. The facts do not support this contention. Both the Call For Bids and the instructions given at the pre-bid meeting were clear. While Petitioner characterizes its mistake as technical and argues that it amounts to an elevation of form over substance, the facts and the law make it clear that Petitioners failure was material its bid was unresponsive. The bid of Petitioner was correctly rejected.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Board of Regents enter a Final Order rejecting

1. Wallace Construction Corporations bid for project BR-116, denying the protest, and awarding the contract for project BR-116 to Anglin Construction Company.

   
   

   DONE and ENTERED this 26th day of February, 1990, in Tallahassee, Florida.

   
   

   
   

   DIANE K. KIESLING

   Hearing Officer

   Division of Administrative Hearings The DeSoto Building

   1230 Apalachee Parkway

   Tallahassee, FL 32399-1550

   (904) 488-9675

   
   

   Filed with the Clerk of the Division of Administrative Hearings this 26th day of February, 1990.

   APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-6844BID

   
   

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

   
   

   Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, D.E. Wallace Construction Corp.

   
   

   1. Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 6(7).

   2. Proposed findings of fact 1, 3-5, 7, and 8 are subordinate to the facts actually found in this Recommended Order.

   3. Proposed findings of fact 2 and 9 are unsupported by the competent substantial evidence.

Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Florida Board of Regents

1. Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-16(1-16).

Specific Rulings on Proposed Findings of Fact Submitted by Intervenor, Anglin Construction Company

1. Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding Of Fact which so adopts the proposed finding of fact: 2(6); 5,(8); and 6(16).

2. Proposed findings of fact 1, 3, and 4 are subordinate to the facts actually found in this Recommended Order.

COPIES FURNISHED:

1. Gary Moody Attorney at Law

   Post Office Drawer 2759 Gainesville, Florida 32602

   
   

   Jane Mostoller

   Assistant General Counsel Gregg A. Gleason

   General Counsel

   Florida Board of Regents

   325 West Gaines Street, Suite 1522 Tallahassee, Florida 32399-1950

   
   

   Raymond M. Ivey Attorney at Law

   703 North Main Street, Suite A Gainesville, Florida 32601

   Chancellor Charles B. Reed

   State University System of Florida

   107 West Gaines Street Tallahassee, Florida 32399-1950

   
   

   =================================================================

   AGENCY FINAL ORDER

   =================================================================

   
   

   STATE OF FLORIDA

   DIVISION OF ADMINISTRATIVE HEARINGS

   
   

   
   

2. E. WALLACE CONSTRUCTION CORPORATION,

Petitioner, FLORIDA BOARD OF REGENTS,

Respondent,

CASE NO. 89-6844BID

and

ANGLIN CONSTRUCTION COMPANY,

Intervenor.

/

FINAL ORDER

The Florida Board of Regents, having received the Recommended Order (reproduced herein) entered in this case by Diane K. Kiesling, a duly designated Hearing Officer of the Division of Administrative Hearings, dated February 26, 1990, and having received no exceptions to the Recommended Order, hereby adopts the findings of fact and conclusions of law contained in the Recommended Order.

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on January 18, 1990, in Tallahassee, Florida, before the Division of Administrative Hearings, by its designated Hearing Officer, Diane R. Kiesling.

APPEARANCES

For Petitioner: C. Gary Moodv

Attorney at Law

Post Office Drawer 2759 Gainesville, Florida 32602

For Respondent: Jane Mostoller

Assistant General Counsel Gregg A. Gleason

General Counsel

Florida Board of Regents

325 West Gaines Street Suite 1522 Tallahassee, Florida 32399-1950

For Intervenor: Raymond M. Ivey

Attorney at Law

703 North Main Street Suite A

Gainesville, Florida 32601 STATEMENT OF ISSUES

The issues are whether the Petitioner, D.E. Wallace Construction Corp., is the lowest responsive bidder on project BR-116; whether the Respondent, the Florida Board of Regents, correctly rejected the bid submitted by the Petitioner; and whether the bid on BR-116 should be awarded to the Intervenor, Anglin Construction Company.

PRELIMINARY STATEMENT

The Petitioner presented the testimony of Donald E. Wallace. The Respondent presented the testimony of Larry Ellis, Patricia Jackson, and Murdock Shaw. The Intervenor presented the testimony of Dennis Ramsey. Joint Exhibits 1-9 were admitted in evidence.

The transcript of the proceedings was filed on February 9, 1990. All three parties timely filed proposed findings of fact and conclusions of law. All proposed findings of facts and conclusions have been considered. A specific ruling on each proposed finding of fact is made in the Appendix attached hereto and made a part of this Recommended Order.

FINDINGS OF FACT

1. Respondent issued a Call for Bids, in Florida Administrative Weekly, Volume 15, No. 38, September 22, 1989, for a construction project referred to as the Reitz Union Addition, BR-116, University of Florida. The Call for Bids provided that at least 15 percent of the project contract amount would be expended with minority business enterprises certified by the Florida Department of General Services as set forth under the Florida SSmall and Minority Business Assistance Act, Chapter 287, Florida Statutes. If 15 percent were not obtainable, the State Universiry System would recognize good faith efforts by the bidder.

   
   

2. The Call For Bids provided that all bidders must be qualified at the time of their Bid Proposal in accordance with the Instruction to Bidders, Article B-2. The Instructions to Bidders, Article B-2, provides in pertinent part that in order to be eligible to submit a Bid Proposal, a bidder must meet any special requirements set forth in the Special Conditions of the Project Manual.

3. The Project Manual Index provides that "L-Special Conditions" pages are numbered separately.

   
   

4. The Project Manual, Instruction to Bidders B-23, as revised by Section L, Special Conditions, Supplement #1, at supplement page 2, provides that the contract will be awarded by Respondent for projects of $500,000 or more, to the lowest qualified bidder, provided it is in the best interest of the Respondent to accept it. The award of the contract is subject to the provisions of Section 287.0945, Florida Statutes, and the demonstration of "good faith effort" by any bidder whose Bid Proposal proposes less than 15 percent participation in the contract by MBFs. Demonstrated "good faith effort" as set forth in the Special Conditions would be accepted in lieu of all or part of the 15 percent requirement. The contract award will be made to the bidder that submits the lowest responsive aggregate bid within the preestablished construction budget. The aggregate bid shall consist of the base bid plus accepted additive alternate bids, or less accepted deductive alternate bids, applied in the numerical order in which they are listed on the bid form.

   
   

5. The Project Manual, Instructions to Bidders, B-25 at page 17, provides that the Respondent/Owner has adopted a program for the involvement of minority business enterprises in the construction program. The application of that programis set forth in the Special Conditions of the Project Manual. The Project Manual, Instructions to Bidders, B-26 at page 17, provides that bidders shall be thoroughly familiar with the Special Conditions and shall strictly adhere to their requirements.

   
   

6. A representative from D.E. Wallace Construction Corp., Ms. Betsy Wallace, attended the pre-solicitation/pre-bid meeting on October 5, 1989. One of the purposes of the pre-solicitation/pre-bid meeting was to explain the MBE program to the general contractors and others in attendance. Mr. Larry Ellis, the minoritv purchasing coordinator for the University of Florida, provided the contractors with information as to how they could obtain the 15 percent minority participation requirement or how they could satisfy the requirements of the good faith effort. Mr. Ellis informed those in attendance that the listing of subcontractors form required that the bidder reveal the 15 percent MBE participation on the face of the form, that such form was located in the Special Conditions section, and that the form must be completed and submitted at the time of bid opening, if in fact the general contractor was seeking to show he or she had met the 15 percent participation requirement.

   
   

7. Sealed bids for BR-116 were opened on October 19, 1989. Petitioner was the lowest monetary bidder. Anglin Construction Company, Intervenor, was the second lowest monetary bidder.

   
   

8. Petitioner was notified by letter dated October 24, 1989, that its bid proposal was found not to be in compliance with the requirements of the Project Manual because an incorrect list of subcontractors form was submitted, that Petitioner's proposed MBEs were not identified at the time of bid opening, and that Petitioner failed to show a good faith effort in meeting the 15 percent MBE participation.

   
   

9. By letter dated October 30, 1989, the University of Florida recommended to the Respondent that the construction contract for BR-116 be awarded to the Intervenor for the base bid and alternates 1 through 9 in the amount of

   $991,272.

10. The Project Manual for BR-116 contains Section L, Special Conditions, which contains Supplement #1, with pages numbered supplemental pages 1 through

1. The Call for Bids provides that bids must be submitted in full and in accordance with the requirements of the drawings and Project Manual. The Project Manual provides that bidders are required to examine carefully the drawings, specifications, and other bidding documents and to inform themselves thoroughly regarding any and all conditions and requirements that may in-any manner affect the work. Mr. D.E. Wallace testified that he is a certified general contractor licensed by the State of Florida for 13 years and that as part of his licensing examination he was required to demonstrate proficiency in reading and understanding bidding documents, manuals, instructions, plans, and drawings. Mr. Wallace testified that he skimmed over the Project Manual and the Special Conditions section but that he really did not review them.

   
   

2. Petitioner submitted its list of subcontractors on an outdated form, dated January 20, 1988, contained in the Project Manual at Section D, page 21. In Supplement #1 of Section L, Special Conditions, at page 17 of the Project Manual, the bidder is instructed to delete the January 20, 1988, version of the subcontractors form and substitute in lieu thereof the List of Subcontractors form included in the Supplement dated June 15, 1988. The form was revised to allow contractors who could not meet the MBE requirements to show good faith effort in obtaining participation, to restrict MBEs to those certified by the Florida Department of General Services, and to eliminate any bid shopping attempts by requiring that contractors reveal their NBE participation at the time of the bid opening.

   
   

3. Petitioner admitted that the wrong list of subcontractors form was used when its bid was submitted.

   
   

4. The Respondent's Project Manual contains a licensed version of a standard American Institute of Architects (AIA) document which could not be revised without AIA permission. The revised list of subcontractors form and revised MBE requirements were placed within the Special Conditions section of the Project Manual, which did not require AIA's permission. It is not unusual, in the construction industry, to have supplemental or special conditions within a project manual.

   
   

5. The construction budget for this project was $1,096,800.

   
   

6. Petitioner did not submit its MBE subcontractors at the time of bid opening. Petitioner submitted its MBE plan on October 26, 1989, seven days after bid opening.

   
   

7. Petitioner's MBE subcontractor participation was less than 15 percent of the contract sum required for BR-116. The contract sum is comprised of the base bid and the alternates for the project.

CONCLUSIONS OF LAW

The Division of Administrative Hearings has jurisdiction of the parties to and subject matter of these proceedings. Section 120.53(5) and 120.57(1), Florida Statutes.

Section 240.209(3)(n), Florida Statutes, provides in pertinent part, that the Board of Regents shall adopt rules to administer a program for the maintenance and construction of facilities in the State University System.

The Florida Board of Regents promulgated Rule 6C-14.021(2), Florida Administrative Code, which provides in pertinent part:

(2) In order to be eligible to submit a bid proposal, a firm must, at the time of receipt of bids:

* * *

(d) Meet any special prequalification requirements set forth in the project specifications, including compliance with requirements for minority business enterprise participation.

* * *

(5) All projects will be publicly bid in accordance with the provisions in the project specifications. Except for informalities which may be waived by the Chancellor or designee, or by the University-president or designee for Minor Projects, a bid which is incomplete or not in conformance with the requirements of the specifications shall be determined to be non- responsive and shall be rejected. Award of contract will be made to the firm determined to be qualified in accordance with these rules which submits the lowest and best priced proposal for the work except that if it is in the best interest of the State, all bids may be rejected and the project may be bid again.

The burden of proof to establish that it is entitled to the award of the contract is upon the unsuccessful party. Florida Department of Transportation v.

J.W.C. Co., Inc. 396 So.2d 778 (Fla. 1st DCA 1981). The challenging party has the burden to establish that the agency's award resulted from illegality, fraud, oppression, or misconduct and was not the result of a fair, full, and honest exercise of the agency's discretion. Liberty County v. Baxter's Asphalt and Concrete, Inc., 121 so.2d 505 (Fla. 1982); Bay Plaza I v. Dept. of Health and Rehabilitative Services, 11 FALR 2854 (April 11, 1989)

An agency has broad discretion in soliciting and accepting bids, and a decision based on the honest exercise of its discretion may not be overturned by a court even if reasonable people may disagree with the outcome. C.H Barco Contracting Co. v. Deoartment of Transportation, 483 So.2d 796 (Fla. 1st DCA 1986); Liberty County v. Baxter's Asphalt and Concrete, Inc., 421 So.2d 505 (Fla.1982).

The APA provides the procedural mechanism for challenging an agency's decision to award or reject bids. [T]he scope of the inquiry is limited to whether the purpose of competitive bidding has been subverted. In short, the hearing officer's sole responsibility is to ascertain whether the agency acted fraudulently, arbitrarily, illegally, or dishonestly." Department of Transportation v. Groves-Watkins, 530 so.2d 912, 914 (Fla. 1988)

It is well established that the responsiveness of a bid is determined as of the time the bids are made public. Palm Beach Group, Inc. v. Department of Insurance and Treasurer, 10 FALR 5627, 5634 (Fla. Dept. of Insurance,1988); Harry Pepper & Associates v Cit of Caoe Coral, 352 So.d 1190 (Fla. 2nd DCA 1977).

The Board of Regents, in the good faith exercise of its discretion, determined that Petitioner's bid was not responsive as submitted. Petitioner failed to use the correct list of subcontractors form and failed to reflect its

MBE subcontractor participation requirements at the time of bid opening as required by the Instructions to Bidders. Instead, Petitioner submitted its proposed MBE participation plan seven days after the date of bid opening, in contravention of the Instructions to Bidders and the Special Conditions of the Project Manual. In E.M. Watkins & Company, Inc. v. Board of Regents, 414 So.2d

583 (Fla. 1st DCA 1982) the Court held that a bidder could not submit subcontractor information after 48 hours of the bid opening. The Court further declared that substituting subcontractors (bid shopping) should be discouraged by requiring a list of subcontractors prior to the bid opening. Id at p. 587. The policy reason behind requiring a list of subcontractors is to prevent the unfair bidding advantage one contractor derives from his failure to list required subcontractors. Requiring the list of subcontractors at the bid opening prevents competitive advantage, insures the quality of the subcontractors, insures public confidence in thebidding process, and encourages future competition. ID at p. 587.

A bid which contains a material variance is unacceptable. Trooabest Foods, Inc. v. Debt. of General Services, 493 So.2d 50 (Fla. 1st DCA 1986).

It is within the discretion of the Board of Regents whether or not to reserve the right to grant a waiver of bid irregularities. Liberty City v. Baxter's Asphalt and Concrete, Inc., supra. Even when an agency reserves the right to waive bid irregularities, it is within the agency's discretion to determine whether or not a waiver is appropriate. Id.

Failure to identify MBE subcontractor participation as required by the Board of Regents bidding documents is a material defect of the bid and should not be waived. See E.M. Watkins and Company v.Board of Regents, supra. An agency may not waive a material irregularity in a bid. Robinson Electrical Co., Inc. v. Dade County, 417 So.2d 1032 (Fla. 3rd DCA 1982); Harry Pepper & Associates v. City of Cape Coral, supra.

The application of the above criteria establishes that the failure of the Petitioner to submit the proper list of subcontractors form identifying its proposed MBEs on the face of the form at the time of bid opening and the failure to demonstrate good faith efforts in meeting the MBE requirements is a material irregularity. The Board of Regents may not waive the deficiency.

Petitioner argues that the forms provided in the Call For Bids are contradictory. The facts do not support this contention. Both the Call For Bids and the instructions given at the pre-bid meeting were clear. While Petitioner characterizes its mistake as technical and argues that it amounts to an elevation of form over substance, the facts and the law make it clear that Petitioner's failure was material and its bid gas unresponsive. The bid of Petitioner was correctly rejected.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Board of Regents enter a Final Order rejecting

D.E. Wallace Construction Corporation's bid for project BR-1167 denying the protest, and awarding ne contract for project BR-116 to Anglin Construction Company.

DONE and ENTERED this 26th day of Feburary, 1990, In Tallahassee, Florida.

DIANE K. KIESLING

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1950

(904) 488-9675

Filed with Clerk of the Divsion of Administrative Hearings this 26th day of February, 1990.

COPIES FURNISHED:

C. Gary Moody Attorney at Law

Post Office Drawer 2759 Gainesville, Florida 32602

Jane Mostoller

Assistant General Counsel Gregg A. Gleason

General Counsel

Florida Board of Regents

325 West Gaines Street, Suite 1522 Tallahassee, Florida 32399-1950

Raymond M. Ivey

Attorney at Law 703 North Main Street, Suite A. Gainesville, Florida 32601

Chancellor Charles B. Reed

State University System of Florida

107 West Gaines Street Tallahassee, Florida 32399-1950

APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 89-6844BID

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

Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, D.E. Wallace Construction Corp.

1. Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 6(7).

2. Proposed findings of fact 1, 3-5, 7, and 8 are subordinate to the facts actually found in this Recommended Order.

   
   

3. Proposed findings of fact 2 and 9 are unsupported by the competent substantial evidence.

Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Florida Board of Regents

1. Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-16(1-16).

Specific Rulings on Proposed Findings of Fact Submitted by Intervenor, Anglin Construction Company

1. Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 2(6); 5(8); and 6(16).

   
   

2. Proposed findings of fact 1, 3, and 4 are subordinate to the facts actually found in this Recommended Order.

This FINAL ORDER constitutes final agency action and an order under Chapter

120 of the Florida Statutes. petitioner and Intervenor may obtain judicial review of this Final Order In the District Court of Appeal, in accordance with Section 120.68, F.S., and the Florida Rules of Appellate Procedure. Commencement of an appeal may be made by filing a Notice of Appeal with the Office of the Corporate Secretary of the Board of Regents and a copy of that Notice, together with the filing fee prescribed by law, with the Clerk of the Court, within 30 days after this order is dated as being filed in the Office of the Corporate Secretary.

THIS FINAL ORDER entered this 30th day of March, 1990.

BY:

Charles B. Reed Chancellor

State University System of Florida

Docket for Case No: 89-006844BID

Orders for Case No: 89-006844BID