STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BERGERON LAND DEVELOPMENT, ) INC., )

)

Petitioner, )

vs. ) CASE NO. 90-5223BID

) DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

and )

)

SMITH AND COMPANY, INC., )

)

Intervenor. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K.N. Ayers, held a public hearing in the above- styled case on September 5, 1990, at Tallahassee, Florida.

APPEARANCES

For Petitioner: John H. Beck, Esquire

1026 East Park Avenue Tallahassee, Florida 32302

For Respondent: Paul J. Martin, Esquire

Department of Transportation 605 Suwannee Street

Tallahassee, Florida 32399-0450

For Intervenor: John Radey, Esquire

Post Office Drawer 11307 Tallahassee, Florida 32303

STATEMENT OF THE ISSUES

Whether Petitioner's bid on State Job No. 86075-3459 was non-responsive and Respondent's award of the bid to the next lowest responsible bidder was arbitrary, illegal or dishonest.

PRELIMINARY STATEMENT

By formal written Protest and Request for Administrative Hearing dated July 30, 1990, Bergeron Land Development, Inc. by and through its attorney challenged the Department of Transportation (DOT) , Respondent's intent to award bid on State Job No. 86075-3459 to Smith and Company, Inc., who requested and was granted leave to intervene in these proceedings. Although Petitioner's

bid was the low bid submitted it was found non-responsive by Respondent for failure to meet Disadvantaged Business Enterprise (DBE) requirements for this project.

At the hearing Petitioner called five witnesses, one of whom was recalled by Respondent, and four exhibits were admitted into evidence. The parties were given 10 days following the filing of the transcript to submit proposed findings. The transcript was filed October 2, 1990. The operative facts are not in dispute, accordingly proposed findings submitted by the Respondent are accepted. Those not included herein were deemed unnecessary to the results reached. Proposed findings submitted by the Petitioner have been considered. Treatment accorded those not accepted is included in the Appendix attached hereto and made a part hereof.

FINDINGS OF FACT

1. Petitioner timely submitted its bid on State Job No. 86075-3459 and this bid was the lowest received by DOT on this project.

   
   

2. The DBE requirement on this bid was 11%. This means each bidder had to show on its submittal that at least 11% of the project cost would go to a minority business subcontractor.

   
   

3. With its bid submittal, on the Disadvantaged Business Enterprise (DBE) Utilization Summary (Form 275-020-003 Minority Prog. 11/87), Petitioner listed as DBE subcontractors Reliable Trucking, Inc. with

   $100,000 as the dollar amount for DBE goal and $280,000 for Community Asphalt Corporation. (Exhibit 1.) These two figures exceeded the 11% minimum DBE requirement.

   
   

4. Community Asphalt Corporation had been a certified DBE subcontractor in early 1990 but in May 1990 its certification expired and was not renewed. Accordingly, at the time of the bid opening, Community Asphalt was not listed on the list of certified DBE subcontractors DOT provided to bidders with the bid forms to complete for this project.

   
   

5. Petitioner had initially shown only Reliable Trucking, Inc. on Exhibit 1 with $400,000 as the dollar amount for the DBE goal. Reliable Trucking is a certified DBE.

   
   

6. Petitioner received a late quote from Community Asphalt and just before submitting its bid added Community Asphalt to its DBE Utilization Summary, interlining the $400,000 amount for Reliable Trucking and changed this amount to $100,000.

   
   

7. Although Petitioner still intended to use Reliable Trucking for work on this project in excess of $400,000 its policy, which was here followed, is to show on its DBE Utilization Summary submitted with its bid only a small percentage over the required minimum. Therefore, when Community Asphalt was added as a DBE subcontractor, the dollar amount to Reliable Trucking was reduced.

   
   

8. Petitioner's employee who added Community Asphalt to the DBE Utilization Summary checked to see that Community Asphalt was a certified DBE but, unfortunately, looked at the list of certified DBE subcontractors

   furnished by DOT for an earlier bid--not the current list. The current list which had been supplied to Petitioner did not list Community Asphalt as a certified DBE.

   
   

9. When the bids received were first checked by the DOT employee who reviews bids to see that DBE requirements are met, she approved the bid but set it aside for further check. Later, after realizing Community Asphalt was not on the approved list of DBE's she disapproved the bid and it proceeded to the Good Faith Efforts Committee for review.

   
   

10. Petitioner submitted no documentation of any good faith efforts to comply with the DBE requirements. This is understandable as Petitioner thought when the bid was submitted that Community Asphalt was a certified DBE and its bid complied with the DBE requirements.

    
    

11. In reviewing and accepting bids for DOT projects, Respondent relies entirely on the documentation submitted with the bid and does not allow bidders to supplement the bid after opening.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

    
    

13. Rule 14-78.003(b) (3), Florida Administrative Code, provides:

    
    

    For all contracts for which DBE contract goals have been established, each bidder shall meet or exceed or demonstrate that it could not meet, despite its good faith efforts, the contract goals set by the Department. The DBE participation information shall be submitted with the contractor's bid proposal. Award of the contract shall be conditioned upon submission of the DBE participation information with the bid proposal and upon satisfaction of the contract goals or, if the goals are not met, upon demonstrating that good faith efforts were made to meet the goals. Failure to satisfy these requirements shall result in a contractor's bid being deemed non-responsive and the bid being rejected.

    1. The contractor's bid submission shall include the following information:

       1. The current names, telephone numbers, and addresses of certified DBE firms that will participate in the contract;

       2. A description of the work each named DBE will perform;

       3. The dollar amount of participation by each named DBE firm;

       4. Any documentation required by the contract or applicable rules as evidence of DBE participation;

       5. If the DBE goal is not met, sufficient information to demonstrate that the contractor made good faith efforts to meet the goals.

       
       

14. The language of the above quoted rule is mandatory. If the bidder does not meet the DBE goals or show the goal could not be met despite good faith efforts to do so, the bid shall be deemed non-responsive and rejected. Here the bid submitted by Petitioner shows on its face that the DBE goal was not met because Community Asphalt was not a certified DBE at the time the bid was opened, and Petitioner submitted no evidence that a good faith effort had been made to obtain the requisite DBE participation but without success.

    
    

15. To allow Petitioner or any other contractor to correct the bid after opening would negate the competitive bid process.

    
    

16. From the foregoing, it is concluded that Bergeron Land Development, Inc. submitted its bid on State Job No. 86075-3459, the bid did not meet the DBE goal set for this project, and this bid was properly rejected as being non- responsive.

RECOMMENDATION

It is recommended that the protest of Bergeron Land Development, Inc. to the rejection of its bid submitted on State Job No. 86075-3459 be dismissed with prejudice.

DONE and ENTERED this 23rd day of October, 1990, in Tallahassee, Leon County, Florida.

KEN N. AYERS

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 23rd day of October, 1990.

APPENDIX

Respondent's proposed findings are generally accepted, except for:

1. Rejected. The DBE forms submitted by Petitioner, as corrected by Petitioner before submittal, showed Reliable Trucking, Inc., a certified DBE, to receive only $100,000 in subcontracts, far less than the 11% DBE participation required.

2. Rejected. Whether Reliable Trucking had a firm contract with Petitioner to provide in excess of $400,000 subcontracting work on this project is immaterial if the DBE utilization form submitted with the bid fails to show the DBE utilization goal is attained or documentation of good faith efforts are not included.

   
   

3. Rejected that the mistake by Petitioner was a non-material mistake. Bids have to be accepted as received.

   
   

4. Rejected.

   
   

5. Rejected.

   
   

6. Rejected.

   
   

7. Accepted as an accurate quote of Rule 14-78.003,Florida Administrative Code. The legal conclusion that the ruledoes not require evidence of good faith efforts be included withthe bid submitted is rejected.

   
   

8. The conclusion of law that Respondent violated its own rule is rejected.

COPIES FURNISHED:

John H. Beck, Esquire 1026 East Park Avenue

Tallahassee, Florida 32301

Paul J. Martin, Esquire Department of Transportation 605 Suwannee Street

Tallahassee, Florida 32399-0450

John Radey, Esquire

Post Office Drawer 11307 Tallahassee, Florida 32302

Ben G. Watts, Secretary Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399-0458

Thornton J. Williams, Esquire General Counsel

Department of Transportation 605 Suwannee Street, Room 562

Tallahassee, Florida 32399-0458

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at lease 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BERGERON LAND DEVELOPMENT, ) INC., )

)

Petitioner, )

vs. ) CASE NO. 90-5223BID

) DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

and )

)

SMITH AND COMPANY, INC., )

)

Intervenor. )

)

ORDER CORRECTING ERROR IN APPENDIX TO ORIGINAL RECOMMENDED ORDER

Due to an oversight, the Appendix attached to the Recommended Order dated October 23, 1990, incorrectly refers to Respondent's proposed findings and should be corrected to Petitioner's proposed findings. The proposed findings partially or wholly rejected were those submitted by Petitioner.

DONE and ORDERED this 19th day of November, 1990, in Tallahassee, Florida.

KEN N. AYERS

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 19th day of November, 1990.

Docket for Case No: 90-005223BID

Orders for Case No: 90-005223BID