SIGNAL CONSTRUCTION CO., INC. )
vs. ) CASE NO. 90-7876BID
Respondent. )
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Claude B. Arrington, held a formal hearing in the above-styled cases on December 31, 1990, in Tallahassee, Florida.
For Petitioner: John A. Barley, Esquire
John A. Barley & Associates, P.A.
P.O. Box 10166
For Respondent: Susan P. Stephens, Esquire
Whether Petitioner should have been awarded the contracts for Florida Department of Transportation (FDOT) Project No. 99004-3589 and FDOT Project No. 86999-3504.
Petitioner was the apparent low bidder for two projects let for bid by FDOT in November 1990. On each of these projects, Petitioner was disqualified as a bidder because of a Final Order that had been entered by FDOT on March 16, 1990. This Final Order suspended Petitioner's qualifications as a bidder and provided, in part, that Petitioner would not be permitted to bid on any FDOT construction project, regardless of the amount of the bid. Following the rejection of its bids, Petitioner filed a timely challenge to the rejection of its bids and this proceeding followed.
At the formal hearing, Petitioner called as witnesses Ms. Teresa Martin and Mr. Bruce Randolph Boyd. Ms. Martin is the Assistant District Contracts Administrator of FDOT District IV. Mr. Boyd is the president of the Petitioner. In addition, Petitioner submitted 12 exhibits, one of which was a late filed exhibit. All 12 of Petitioner's exhibits were accepted into evidence.
Respondent presented additional testimony from Ms. Martin and presented 3 exhibits, each of which was accepted into evidence. Following the formal hearing, Petitioner filed excerpts from the record of certain administrative and judicial proceedings. There had been no timely request to file such excerpts as a late filed exhibit and there had been no timely request to take official recognition of the records of those proceedings. Consequently, Respondent's motion to strike these excerpts was granted.
A transcript of the proceedings has been filed. Rulings on the parties' proposed findings of fact may be found in the Appendix to this Recommended Order.
On March 16, 1990, the Florida Department of Transportation entered the following Final Order in Case No. 89-3072:
By certified mail, on March 5, 1989, the FLORIDA DEPARTMENT OF TRANSPORTATION
(DEPARTMENT) gave notice to Petitioner, SIGNAL CONSTRUCTION COMPANY, INC., of intent
to suspend their Certificate of Qualification pursuant to Fla. Admin. Rule 14-23 for unsatisfactory progress of work on State Project Nos. 10000-3352, 10500-3638 and
10500-3635. On May 15, 1989, Petitioner received such notice and requested an administrative hearing. The matter was referred to the Division of Administrative Hearings. Prior to hearing, the Petitioner filed a Notice of Voluntary Dismissal Without Prejudice. On December 6, 1989, the Hearing Officer, K. N. Ayers, entered an order closing the filed and cancelling the hearing.
Therefore, it is
ORDERED that SIGNAL CONSTRUCTION COMPANY,
INC. is determined to be delinquent on State Projects 10000-3352, 10500-3638 and
10500-3635; and
IT IS FURTHER ORDERED that the
Certificate of Qualification of SIGNAL CONSTRUCTION COMPANY, INC. is suspended as of the date of this Order and the suspension shall continue until State Projects
10000-3352, 10500-3638 and 10500-3635 are
conditionally accepted by the DEPARTMENT and for 296 days thereafter (May 26, 1989 to the date of this Final Order). During the period of suspension, neither SIGNAL CONSTRUCTION COMPANY, INC., nor its affiliates shall bid
on any DEPARTMENT OF TRANSPORTATION
construction contract regardless of the amount
of bid, nor be approved as a subcontractor on any DEPARTMENT contract.
DONE AND ORDERED this 16th day of March,
1990.
The Florida Department of Transportation's (FDOT) District IV consists of the following Florida Counties: Indian River, St. Lucie, Martin, Palm Beach, and Broward.
At the times pertinent to this proceeding, Teresa Martin was the Assistant District Contracts Administrator of FDOT District IV whose responsibilities included the letting of construction and maintenance contracts for projects that do not exceed $250,000.
On or about October 12, 1990, Signal Construction Company (Signal), in response to advertisements for bids, requested bid documents from the District IV staff for several projects that were to be let. Included in those projects were State Job Numbers 86999-3504 and 99004-3589. Because of the dollar limit on these projects, it was within Ms. Martins's authority to review the responses and to award the bids. Prior to providing the bid documents to Signal, Ms. Martin had a member of her staff check the suspended bidders list to verify that Signal was not a suspended bidder. Because the list was outdated, Signal was not listed on the suspended bidder list used by District IV, and the bid documents were furnished to Signal. Signal did not advise the District IV staff that it had been suspended because it had challenged the suspension and was involved in litigation with FDOT over the suspension. Signal knew of the order entered by FDOT on March 16, 1990, but considered its suspension abated until resolved by the pending litigation.
Pursuant to Signal's request, FDOT assembled a set of bid documents for State Job Numbers 86999-3504 and 99004-3589 as requested by Signal and delivered the same to Signal. FDOT also prepared and delivered an invitation to bid which solicited Signal's bid on these projects. Signal, in response, prepared bids for State Job Numbers 86999-3504 and 99004-3589 and at least one other project that FDOT had advertised.
The invitation to bid advised bidders that bids would be accepted until November 2, 1990, at 10:30 a.m., and that there would be a mandatory pre-bid conference for these projects on October 23, 1990. In accordance with the requirements of the invitation to bid and the pertinent bidding documents, representatives of Signal attended the mandatory pre-bid conferences for State Job Numbers 86999-3504 and 99004-3589. Representatives of Signal signed the roster of attendance. Thereafter, Signal continued preparation of its competitive bids for projects State Job Numbers 86999-3504 and 99004-3589.
On October 29, 1990, FDOT prepared and issued an addendum to the bid documents for both project 86999-3504 and for project 99004-3589. These addenda were delivered by FDOT to Signal by express mail, return receipt requested.
Both addenda notified Signal, as a potential bidder, that the deadline for the submission of bids had been extended to Friday, November 9, 1990, at 1:30 p.m.
Signal timely submitted competitive bids for State Job Numbers 86999- 3504 and 99004-3589. Ms. Martin thereafter evaluated all bids submitted for these projects, including the bids of Signal. Ms. Martin intended to award the bids for State Job Numbers 86999-3504 and 99004-3589 to Signal until she was informed by Mr. Reynold Meyer, an attorney for FDOT, that Signal was a suspended bidder. Ms. Martin had not known that Signal had been suspended as a bidder
until she was so informed by Mr. Meyer on November 15, 1990. This information was provided Ms. Martin in response to a routine inquiry she made to FDOT's Contract Administration Office in Tallahassee. This inquiry was made even though the bidding documents pertinent to these projects did not require the bidder to hold a Certificate of Qualification to bid or to be prequalified as a bidder.
After her conversation with Mr. Meyer on November 15, 1990, Ms. Martin disqualified Signal's bids on State Job Numbers 86999-3504 and 99004-3589. If there had been no question as to whether Signal was eligible to bid, Signal would have been awarded the contracts for both State Job Numbers 86999-3504 and 99004-3589.
Neither Ms. Martin or anyone else from FDOT informed Signal that it had been disqualified as a bidder until the bid tabulations were posted by Ms. Martin on November 28, 1990.
The Certificate of Qualification that had been suspended by FDOT's Final Order of March 16, 1990, had been issued to Signal on November 3, 1989, and was scheduled to expire on November 30, 1990. The forms necessary for Signal to renew its Certificate of Qualification had been furnished Signal by FDOT's Contracts Administration Office on October 2, 1990.
The administrative proceeding in which FDOT's March 16, 1990, Final Order was entered was commenced by FDOT issuing on May 5, 1989, a Notice of Intent to suspend Signal's Certificate of Qualification. Signal challenged the notice and requested a formal administrative hearing in that proceeding. Thereafter, Signal filed a Notice of Voluntary Dismissal Without Prejudice, which resulted in the closing of the file of the Division of Administrative Hearings and the return of the matter to the referring agency. Thereafter, FDOT issued its Final Order on March 16, 1990. Signal appealed the Final Order of March 16, 1990, to the First District Court of Appeal. There was no evidence that any order was entered which stayed the Final Order of March 16, 1990, while the matter was on appeal.
Shortly after it voluntarily dismissed the administrative proceeding, Signal filed suit in the Circuit Court in and for Hillsborough County, Florida, in an effort to resolve its dispute with FDOT, which contained a claim by Signal for monetary damages from FDOT.
During the period from March 16, 1990, through November 28, 1990, Signal continued to bid for award of contracts let by FDOT based on its unilateral understanding that the Final Order of March 16, 1990, was stayed pending appeal. During this time, Signal was not awarded any FDOT contracts as the prime contractor, but it did perform work as a subcontractor on an FDOT project. It was not established which FDOT officials permitted Signal to continue to bid or who authorized Signal to accept work on an FDOT project as a subcontractor.
On November 6, 1990, representatives of Signal and FDOT met in FDOT's District VII offices in Tampa, Florida, in an effort to negotiate a settlement of all matters then in dispute between Signal and FDOT, including the claims asserted in the circuit court action and the matters raised in the appeal of the Final Order dated March 16, 1990. After three offers and counteroffers, the parties were unable to reach settlement.
On November 8, 1990, FDOT requested that Fred Young of Signal's parent corporation to meet with Jimmy Lairscey, the District VII Construction Engineer, on November 9, 1990, in an effort to further negotiate a settlement of all issues. Both Mr. Young and Mr. Lairscey had actively participated in the settlement negotiations of November 6, 1990, and these two representatives met again on November 9, 1990. Following this meeting, Signal was informed that verbal settlement had been reached on the matters upon which negotiations conducted on November 6, 1990, had collapsed. At Signal's request Mr. Lairscey advised FDOT District VI that Signal had been reinstated as a qualified bidder for a project that required Signal's prequalification as a bidder. On November 9, 1990, the parties contemplated that the settlement terms would have to be reduced to writing. During telephone conversations following the November 9 meeting between Mr. Lairscey and Mr. Young, counsel for the respective parties became aware that there was a disagreement between them as to the continued validity of the Final Order of March 16, 1990.
On November 15, 1990, Mr. Meyer, as counsel for FDOT, wrote Signal's counsel a letter which stated, in pertinent part, as follows:
Our conversations on November 9, 13 and 14, all of which took place subsequent to the meeting between Mr. Lairscey and Mr.
Young, confirm that our clients have been unable to negotiate a settlement through the date of this letter. In order to avoid confusion, this letter reaffirms the Department has rejected all of your client's offers and your client has rejected all of the Department's counteroffers. As of this date, none of the Department's counteroffers are available for acceptance by your client.
This letter confirms, however, the Department's continued willingness to negotiate.
On November 17, 1990, John A. Barley, counsel for Signal responded to Mr. Meyer's letter of November 15, 1990. In this response, Mr. Barley summarized the negotiations between Signal and FDOT and asserted the position that settlement had been reached on November 9, 1990.
On November 28-30, 1990, representatives of Signal and FDOT resumed negotiations in an effort to resolve the disputes between them through means of a written settlement agreement. On November 28, 1990, Ms. Martin posted the bid tabulations for State Job Numbers 86999-3504 and 99004-3589. Signal learned from the posting of the bid tabulations that it had been disqualified as a bidder on these two projects. Signal did not know prior to the bid posting that FDOT had disqualified it as a bidder on these two projects, although it was aware that FDOT considered the Final Order of March 16, 1990, to be effective.
On November 30, 1990, FDOT and Signal entered into a written settlement agreement which provided, in pertinent part, as follows:
On March 16, 1990, the DEPARTMENT issued its Final Order in Case No. 89-3072 declaring SIGNAL delinquent on State Project Nos.
10000-3352, 10500-3638 and 10500-3635. In
that Final Order, SIGNAL's Certificate of
Qualification was suspended from March 16, 1990, until State Project Nos. 10000-3352,
10500-3638 and 10500-3635 are conditionally accepted and for 296 days thereafter.
SIGNAL timely filed it Notice of Administrative Appeal resulting in Case No. 90-1094, which is currently pending before the District Court of Appeal, First District.
The parties have entered into this Joint Stipulation and Settlement to resolve the subject of appellate Case No. 90-1094 amicably without further litigation.
By this Joint Stipulation and Settlement, the DEPARTMENT amends the first sentence of paragraph three of its Final Order in Case No. 89-3072 dated March 16, 1990 as follows:
IT IS FURTHER ORDERED that the
Certificate of Qualification of SIGNAL CONSTRUCTION COMPANY, INC., is suspended as of the date of this Order (March 16, 1990) until and including the date of the execution by SIGNAL of the Joint Stipulation and Settlement (the 30th day of November 1990).
* * *
24. Signal reserves its rights to protest the Department's decision determining Signal a nonresponsive bidder on the two District 4 mini contracts let by District 4 on November 9, 1990.
Paragraph 24 of the settlement agreement refers to the projects that are the subject of this proceeding, but it incorrectly reflects that Signal was determined to be a nonresponsive bidder. FDOT disqualified Signal's bids because of the March 16, 1990, Final Order, not because the bids were nonresponsive.
The only substantial change made in the terms and conditions of settlement stated in the "Joint Stipulation and Settlement" and the terms and conditions of settlement orally agreed upon on November 9, 1990, was the provision making FDOT's March 16, 1990, Final Order effective through November 30, 1990.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over this matter. Section 120.57(1), Florida Statutes.
The Final Order of March 16, 1990, was not automatically stayed by the filing of the notice of appeal. See, Section 337.167(1), Florida Statutes, Fla. App. R. 9.310, and White Construction Company v. State, Department of Transportation, 526 So.2d 998 (Fla. 1st DCA 1988). Since there was no evidence that an order staying the Final Order pending appeal was entered, it is concluded that the Final Order remained in effect until November 30, 1990, when it was terminated pursuant to the written settlement agreement. Consequently, it is concluded that at all times pertinent to the letting of the bids for State Job Numbers 86999-3504 and 99004-3589, Signal was suspended from bidding on any
FDOT construction contract regardless of the amount of that contract, and that FDOT properly rejected Signal's bids for these two projects on the grounds that it was a suspended bidder.
Signal has failed to establish a factual basis upon which a conclusion can be reached that FDOT has waived its right to assert the continued validity of the Final Order of March 16, 1990.
Likewise, Signal has failed to establish a factual basis upon which a conclusion can be reached that FDOT is estopped to assert the continued validity of the Final Order of March 16, 1990.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which dismisses the bid protests
filed by Signal.
DONE AND ORDERED in Tallahassee, Leon County, Florida, this 6th day of February, 1991.
CLAUDE B. ARRINGTON
Filed with the Clerk of the Division of Administrative Hearings this 6th day of February, 1991.
The following rulings are made on the proposed findings of fact submitted on behalf of the Petitioner.
The proposed findings of fact in paragraph 1 are adopted in part by the Recommended Order, and are rejected in part as being subordinate to the findings made.
The proposed findings of fact in paragraph 2 are adopted in material part by the Recommended Order.
The proposed findings of fact in paragraph 3 are adopted in material part by the Recommended Order.
The proposed findings of fact in paragraph 4 are adopted in part by the Recommended Order, and are rejected in part as being subordinate to the findings made.
The proposed findings of fact in paragraph 4 are adopted in part by the Recommended Order, and are rejected in part as being subordinate to the findings made or as being unnecessary to the conclusions reached.
The proposed findings of fact in paragraph 6 are rejected as being unnecessary to the conclusions reached.
The proposed findings of fact in paragraph 7 are adopted in material part by the Recommended Order.
The proposed findings of fact in paragraph 8 are rejected as being unnecessary to the conclusions reached.
The proposed findings of fact in paragraph 9 are adopted in material part by the Recommended Order. The proposed findings of fact contained in the last sentence of paragraph 9 are considered preliminary matters.
The proposed findings of fact in paragraph 10 are adopted in material part by the Recommended Order.
The proposed findings of fact in paragraph 11 are adopted in part by the Recommended Order, and are rejected in part as being unsubstantiated by the record.
The proposed findings of fact in paragraph 12 are adopted in part by the Recommended Order, and are rejected in part as being unsubstantiated by the record.
The proposed findings of fact in paragraph 13 are adopted in part by the Recommended Order, and are rejected in part as being unsubstantiated by the record.
The proposed findings of fact in paragraph 14 are adopted in part by the Recommended Order, and are rejected in part as being unsubstantiated by the record.
The proposed findings of fact in paragraphs 15 are adopted in part by the Recommended Order, and are rejected in part as being subordinate to the findings made.
The proposed findings of fact in paragraph 16 are adopted in material part by the Recommended Order, and are rejected in part as being subordinate to the findings made. The proposed findings regarding the request to have Mr. Lairscey notify District IV of the reinstatement of Signal is rejected as being contrary to the greater weight of the evidence.
The proposed findings of fact in paragraph 17 are rejected as being unnecessary to the conclusions reached.
The proposed findings of fact in paragraph 18 are adopted in part by the Recommended Order and are rejected in part as being contrary to the findings made.
The proposed findings of fact in paragraph 19 are adopted in part by the Recommended Order and are rejected in part as being unnecessary to the conclusions reached.
The proposed findings of fact in paragraph 20 are rejected as being unnecessary to the conclusions reached.
The following rulings are made on the proposed findings of fact submitted on behalf of the Respondent.
John A. Barley, Esquire
John A. Barley & Associates, P.A.
P.O. Box 10166 Tallahassee, Florida 32301
Susan P. Stephens, Esquire Assistant General Counsel
Florida Department of Transportation 605 Suwannee Street, MS-58 Tallahassee, Florida 32399-0458
Ben G. Watts Secretary
Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street
Tallahassee, Florida 32399-0458 Attention Eleanor F. Turner
Thornton J. Williams General Counsel
Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street
All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 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.
