STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

R.A.M. PLANT GROWERS, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 92-169BID

)

FLORIDA DEPARTMENT OF )

TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to written Notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Daniel Manry, held a formal hearing in the above-styled case on January 28, 1992, in Miami, Florida.

APPEARANCES

For Petitioner: Mitchell Captain, pro se

Vice President

R.A.M. Plant Growers

7811 West Commercial Boulevard Tamarac, Florida 33321

For Respondent: Susan P. Stephens, Esquire

Assistant General Counsel Department of Transportation

605 Suwannee Street, Mail Station 58

Tallahassee, Forida 32399-0458 STATEMENT OF THE ISSUES

The issue for determination in this proceeding is whether Respondent acted arbitrarily, capriciously, illegally, or dishonestly in rejecting Petitioner's bid on Contract No. E4571 as irregular and non-responsive.

PRELIMINARY STATEMENT

By formal protest filed on December 27, 1991, Petitioner challenged Respondent's intent to award Contract No. E4571 to J & D Tropical Landscape Design. The matter was referred to the Division of Administrative Hearings for assignment of a hearing officer on January 13, 1992, and assigned to the undersigned on January 14, 1992. A formal hearing was scheduled for January 28, 1992, pursuant to a Notice of Hearing issued on January 14, 1992.

At the formal hearing, the parties filed a Joint Prehearing Stipulation, and submitted three joint exhibits for admission in evidence. Joint Exhibits 1-

3 were admitted in evidence pursuant to the stipulation of the parties. 1/

Petitioner presented the testimony of Ms. Teresa Martin, Assistant District Contracts Administrator, District 4, Department of Transportation, Fort Lauderdale, Florida, and Mr. Mitchell Captain, Vice President, R.A.M. Plant Growers, Inc. Petitioner submitted one exhibit which was admitted in evidence without objection. 2/ Respondent called no witnesses and submitted no other exhibits for admission in evidence.

A transcript of the formal hearing was not requested by either party.

Proposed findings of fact and conclusions of law were timely filed by Petitioner on February 10, 1992, and by Respondent on February 11, 1992. The parties' proposed findings of fact are addressed in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Nine bids were received for Contract E4571, Project/Job No. 99004-3516 ("E4571"). Petitioner's bid was timely received. Respondent opened bids on December 13, 1991. Respondent posted its intent to award E4571 to J & D Tropical Landscape Design on December 20, 1991.

   
   

2. Section 1.2 of the Bid Specifications for E4571, as modified by the Special Provisions, states:

   
   

   A contractor's bid shall be in the form of a unit price for each unit expected to be accomplished.

   
   

3. The Special Provisions to E4571 require each bidder to submit a single unit price for each pay item called for in the Bid Price Proposal. Item 4 in the Special "Provisions provides:

   
   

   It shall be the responsibility of the Contractor to submit to the Department A SINGLE unit price for each pay item called for in the Bid Price Proposal.

   The Contractor shall be responsible for his/her method of averaging. Failure to comply shall result in the Contractor's Bid Proposal being declared "Irregular" and such Bid Proposals will be rejected. (emphasis added)

   
   

4. Petitioner's Bid Proposal was properly declared irregular and rejected by Respondent. Petitioner failed to comply with the requirements of Item 4 in the Special Provisions by failing to submit a single unit price for each pay item, by failing to correctly average a unit price, and by failing to state the unit price in words.

5. The Unit Price Sheet on page 23 of the Bid Proposals contains the following table listing item numbers A582- 2 through A584-4. Petitioner listed item number A583 as follows:

   
   

   ITEM PLAN ITEM DESCRIPTION AND UNIT PRICE $ AMOUNTS NUMBER QUANTITIES UNIT PRICE (IN FIGURES) (Exten-

   (IN WORDS) sion

   Price) 3/

   A583 4 200.000 TREES (8' TO 20, 85 20400

   PLANT ' HEIGHT OR CLEAR TRUNK) @ DOLLARS

   CENTS

   
   

   The actual extension price 4/ for 200 trees at $85 per unit is $17,000 rather than the $20,400 stated by Petitioner in the table on page 23. The "Contract Total" stated by Petitioner in the bottom right corner of the table is

   $37,013.20. The "Contract Total" that should have been stated if Petitioner intended the extension price of item number A583-4 to be $17,000 would have been

   $33,613.

   
   

6. The "Contract Total" listed by a bidder on the Unit Price Sheet is the unverified contract price. The actual contract price is determined by Respondent pursuant to the formula given in Section 1.3 of the Bid Specifications. Section 1.3 of the Bid Specifications foil E4571 states:

   
   

   The contract price is defined as the sum of the unit bid price times the planned work for each item as shown on the Unit Price Sheet.

   
   

7. Petitioner would have been the lowest successful bidder irrespective of whether Respondent had replaced the extension price for item number A583-4 and the "Contract Total" stated by Petitioner with the actual extension price for item number A583-4 and the actual "Contract Total" . However, Respondent is precluded from doing so by Section 3-1 of the Standard Specifications For Road

   ,and Bridge Construction ("Standard Specifications"), published by the Florida Department of Transportation (1991) and by the Special Provisions for E4571.

   
   

8. Respondent follows "Section 3-1 of the Standard Specifications for the purpose of evaluating bid proposals. Section 3-1 is used, in part, to determine the extension price for item numbers listed on the Unit Price Sheet. Section 3-

   1 provides in relevant part:

   
   

   In the event of any discrepancy in the three entries for the price of any item, the unit price as shown in words shall govern unless the extension and the unit price shown in figures are in agreement with each other, In which case they shall govern over the unit price shown in words.

   
   

9. Petitioner did not show the unit price in words for any item number on the Unit Price Sheet, including item number A583-4. There is a discrepancy in the three entries for item number A583-4 on the Unit Price Sheet. Petitioner failed to show the unit price for item number A583-4 in words, and the unit

   price and extension price are not in agreement. Under such circumstances, Respondent interprets Section 3-1 of the Standard Specifications as requiring that Petitioner's bid be declared irregular and rejected.

   
   

10. Respondent's interpretation of Section 3-1 of the Standard Specifications is reasonable and is consistent with the mandate in Item 4 of the Special Provisions for E4571. See Finding 4, supra. Furthermore, in practice, the correct unit price of a pay item is necessary to process payment under the contract and the contractor must submit invoices based upon the pay items and unit prices listed in its bid.

    
    

11. The bid specifications for E4571 provide that a bidder is responsible for his or her own averaging of a stated unit price, and that if a bidder fails to provide a single unit price for each pay item on the Unit Price Sheet the bid shall be declared "Irregular" and will be rejected. The requirement to provide a single unit price for each pay item was emphasized by Respondent at the mandatory pre-bid meeting. Petitioner's representative attended the mandatory pre-bid meeting. No challenges were made to the bid specifications by any bidder.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this proceeding. Section 120.57(1), Florida Statutes. The parties were duly noticed for the formal hearing.

    
    

13. The burden of proof in this proceeding is on Petitioner. Petitioner must show by a preponderance of the evidence that Respondent's rejection of Petitioner's bid as irregular and unresponsive was arbitrary, capricious or beyond the scope of its discretion. Capeletti Brows. v. State Department of General Services, 432 So.2d 1359 (Fla. 1st DCA 1983); Systems Development Corporation v. Dept. of Health and Rehabilitative Services, 423 So.2d 433 (Fla. 1st DCA 1982). Alternatively, Petitioner must show by a preponderance of the evidence that Respondent's action was illegal, fraudulent, oppressive, or constituted misconduct. Department of Transportation v. Groves- Watkins Constructors, 530 So.2d 912 (Fla. 1988). Petitioner failed to show by a preponderance of evidence that Respondent's action was arbitrary, capricious, beyond the scope of its discretion, illegal, fraudulent, oppressive, or constituted misconduct.

    
    

14. Respondent has authority to solicit bids from contractors for maintenance of roads designated as part of the State Highway System and any roads placed under its supervision by law. Respondent may award the proposed contract to the lowest responsible bidder. Section 337.11, Florida Statutes (1991).

    
    

15. Respondent's decision in this proceeding should be given strong deference. In Liberty County v. Baxter's Asphalt and Concrete, Inc., 421 So.2d 505, 507 (Fla. 1982, the court held:

    
    

    . . . [a] public body has wide discretion in soliciting and accepting bids for public improvements and its decision, when based on an honest exercise of this discretion, will not be overturned by a court even if it may appear erroneous and even if reasonable persons may disagree.

16. Respondent's decision to declare Petitioner's bid irregular and reject Petitioner's bid proposal was an honest and reasonable exercise of Respondent's discretion. Petitioner failed to object to the bid specifications at the mandatory bid conference and failed to show that Respondent's action was based on anything other than an honest and reasonable exercise of its lawful discretion.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order dismissing the protest

filed by Petitioner.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 20th day of February, 1992.

DANIEL MANRY

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(964) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 20th day of February, 1992.

ENDNOTES

1/ Joint Exhibit 1 is a copy of the blank bid form used for Contract No. E4571. Joint Exhibit 2 is a copy of the completed bid submitted by Petitioner. Joint Exhibit 3 is a copy of the Bid Results for Contract No. E4571.

2/ Petitioner's Exhibit 1 is a copy of the completed bid of the successful bidder, J&D Tropical Landscape Design, Inc.

3/ The term "extension price" does not appear in the actual table but is added in this Recommended Order for clarity.

4/ See discussion in Findings of Fact, para. 6, infra.

APPENDIX

Petitioner has submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. No notation is made for unnumbered paragraphs.

The Petitioner's Proposed Findings of Fact

Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection

Respondent has submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted.

The Respondent's Proposed Findings of Fact

Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection

and immaterial

COPIES FURNISHED:

R.A.M. Plant Growers, Inc. 7811 W. Commercial Boulevard Tamarac, Florida 33321

Mims Gardens, Inc.

4861 SW 106 Avenue

Cooper City, Florida 33328

Vila and Son Landscaping, Corp. 19300 SW 194th Avenue

Miami, Florida 33187

Tropics North

26401 SW 107th Avenue Princeton, Florida

Southeast Cattle Co., Inc. 17300 Vines Boulevard

Pembroke Pines, Florida 33084

R.F. O'Brien Landscaping, Inc. 2990 N.W. 132nd Terrace

Opa Locka, Florida 33054

Nature's Way Landscaping, Inc. 12800 S.W. 200th Street

Miami, Florida 33177

Melrose Nursery, Inc. 6979 W. 4th Avenue Hialeah, Florida 33014

J&D Tropical Landscape Design

5275 SW 106th Avenue

Cooper City, Florida 33328

Ben G. Watts, Secretary, Dept. of Transportation Attention: Eleanor F. Turner, M.S. 58

Haydon Burns Building 605 Suwannee Street

Tallahassee, Florida 32399-0458

Thornton J. Williams, Esquire

General Counsel, Department of Transportation

562 Haydon Burns Building Tallahassee, Florida 32399-0458

Susan P. Stephens, Esq. Department of Transportation 605 Suwannee Street, MS-58 Tallahassee, Florida 32399-0458

Docket for Case No: 92-000169BID

Orders for Case No: 92-000169BID