STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

1. I. C. COMMERCIAL CONSTRUCTION ) CORP., )

   )

   Petitioner, )

   )

   vs. ) CASE NO. 92-2370BID

   ) DEPARTMENT OF GENERAL SERVICES, )

   )

   Respondent, )

   and )

   )

   THE WEITZ COMPANY, INC., )

   )

   Intervenor. )

   )

   
   

   RECOMMENDED ORDER

   
   

   Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on May 12 and 13, 1992, in Tallahassee, Florida.

   
   

   APPEARANCES

   
   

   For Petitioner: Melinda S. Gentile, Esquire

   Ruden, Barnett, McClosky, Smith, Schuster & Russell, P.A.

   200 East Broward Boulevard Post Office Box 1900

   Fort Lauderdale, Florida 33302

   
   

   For Respondent: Stephen S. Mathues, Esquire

   Department of General Services Knight Building, Suite 309 2737 Centerview Drive

   Tallahassee, Florida 32399-0950

   
   

   For Intervenor: Bruce G. Alexander, Esquire

   Boose Casey Ciklin Lubitz Martens McBane & O'Connell

   515 North Flagler Drive, Suite 1900 Post Office Drawer 024626

   West Palm Beach, Florida 33402

   
   

   Neil H. Butler, Esquire Butler & Long, P.A. Post Office Box 839

   Tallahassee, Florida 32302

   STATEMENT OF THE ISSUE

   
   

   The issue presented is whether the Department acted fraudulently, arbitrarily, illegally, or dishonestly in proposing to award to Intervenor, The Weitz Company, Inc., a contract for Project No. DGS-88114000.

   
   

   PRELIMINARY STATEMENT

   
   

   Following its Invitation to Bid, the Department proposed to award a contract to The Weitz Company, Inc., and Petitioner timely filed its Notice of Protest and then its Formal Notice of Protest. This cause was subsequently transferred to the Division of Administrative Hearings for the conduct of a formal proceeding to determine the propriety of that proposed bid award. The Weitz Company was subsequently permitted to intervene in this proceeding.

   
   

   Petitioner presented the testimony of Ted Hutchins, Susan Hodge, Harold Barrand, and Thaddeus Fortune. The Department presented the testimony of Larry

   1. Schaeffer, Harold Barrand, and Carolyn Wilson-Newton, and Gary Hennings testified on behalf of the Intervenor. Additionally, Petitioner's Exhibits numbered 1-16, Respondent's Exhibit numbered 1, Intervenor's Exhibits numbered 1-5, and Joint Exhibit numbered 1 were admitted in evidence.

      
      

      All parties submitted post-hearing proposed findings of fact in the form of proposed recommended orders. A specific ruling on each proposed finding of fact can be found in the Appendix to this Recommended Order.

      
      

      FINDINGS OF FACT

      
      

      1. On February 18, 1992, Respondent Department of General Services issued its Invitation to Bid on Project No. DGS-88114000, the construction of the Fort Pierce Regional Service Center. The bid package contained a copy of the Department's Advertisement for Bids, together with the bid specifications, evaluation criteria, and criteria for award of the contract.

         
         

      2. The Department's Advertisement for Bids identified the project, advised that sealed bids would be received and opened at 2:00 p.m. on March 12, 1992, stated that the Bid Tabulation and Notice of Award Recommendation would be posted at 4:00 p.m. on that same date, and contained the following language:

         
         

         MINORITY PROGRAM: In accordance with Florida Statute 287.057(6), at least 21 percent of the project contracted amount will be expended with DGS certified minority business

         enterprises. If 21 percent is not attainable, the Division of Building Construction will

         recognize Good Faith Efforts by the Bidder. The Bidder is advised to review these requirements in the Section B-13B "Employment of and Reporting of DGS Certified Minority

         Business Enterprises Participation" immediately, in order to schedule the necessary tasks to accomplish Good Faith Efforts.

         
         

         Page 2 of the bid package was the Invitation to Bid form letter which contained the identical language as that quoted above.

      3. Section B-13B found on page 14 of the bid package under Instructions to Bidders provides as follows:

   
   

   B-13B EMPLOYMENT OF AND REPORTING OF DGS CERTIFIED MINORITY BUSINESS ENTERPRISE PARTICIPATION

   
   

   Florida Statute 287.042 and the Department of General Services Rules 13-8 and 13-9, encourages the employment of and requires the reporting

   of DGS Certified Minority Business Enterprise (MBE) participation in state contracting. The Department has as its goal to spend twenty-one

   percent (21 percent) of construction contracts with DGS certified minority business enterprises.

   The overall goal for construction contracts are as follows:

   
   

   4 percent Black Americans

   6 percent Hispanic Americans and

   11 percent American Women

   
   

   The Division Director of the Division of Building Construction recognizes the need to take affirmative actions to insure that Minority and Women business enterprises and minority and women employees are given the opportunity to participate in the performance of the Division of Building Constructions' construction programs. This opportunity for full participation in our free enterprise system by traditionally, socially and economically disadvantaged persons is essential to obtain social nd [sic] economic equality

   and improve the functioning of the State economy. Accordingly, it is the policy of the Division of Building Construction to foster and promote the full participation of such individuals and business firms in the State's building construction program.

   
   

   The Contractor, by bidding on this Contract, acknowledges his understanding and support for the social policy herein stated and pledges to fully cooperate with the State in the implementation of this policy, and further to exert a good faith effort to solicit and obtain the participation of such individuals and firms as subcontractors, suppliers and employees on this Contract.

   
   

   Prior to the execution of a contract, the bidder shall provide the following information on his contract or subcontracts for all DGS certified minority business firms to be utilized on the project:

   * * *

   Contractor's Schedules of Values and Requests for Partial Payments shall also reflect the payments made to each MBE subcontractor, using the name, minority vendor code, type of business and amounts.

   The contractor shall make a good faith effort to use services or commodities of minority business enterprises by:

   1. Attending any presolicitation or prebid meetings that were scheduled by the division to inform minority business enterprises of contracting and subcontracting opportunities;

   2. Advertising in general circulation, trade association, and/or minority-focus media concerning the subcontracting opportunities;

   3. Providing written notice to a reasonable number of specific minority business enterprises that their interest in the contract was being solicited in sufficient time to allow the minority business enterprises to participate effectively;

   4. Following up initial solicitations of interest by contacting minority business enterprises or minority persons to determine with certainty whether the minority business enterprises or minority persons were interested;

   5. Selecting portions of the work to be performed by minority business enterprises in order to increase the likelihood of meeting the minority business enterprise goals, including, where appropriate, breaking down contracts into economically feasible units to facilitate minority business enterprise participation;

   6. Providing interested minority business enterprises or minority persons with adequate information about the plans, specifications, and requirements of the contract or the availability of jobs;

   7. Negotiating in good faith with interested minority business enterprises or minority persons, not rejecting minority business enterprises or minority persons as unqualified without sound reasons based on a through [sic] investigation of their capabilities; and

   8. Effectively using services of available minority community organizations; minority contractors' groups; local, state, and federal minority business assistance offices; and other organizations that provide assistance in the recruitment and placement of minority business enterprises or minority persons.

1. Prior to the issuance of the Invitation to Bid, the St. Lucie County Democratic Executive Committee directed a letter to Governor Lawton Chiles concerning the high rate of unemployment in the construction industry in the Fort Pierce and St. Lucie County area. That letter requested that language be included in the invitation for bids for the Fort Pierce Regional Service Center

   specifying that priority be given to the available resident work force, first, from within the city of Fort Pierce and, second, from within St. Lucie County. That correspondence reached the Department of General Services, with the result that the following language was included within the bid specifications on page 14a:

   
   

   B-13C EMPLOYMENT OF LOCAL LABOR, SUBCONTRACTORS AND MATERIAL SUPPLIERS

   
   

   The procurement by General Contractors and Sub- contractors of persons for skilled and unskilled worker positions, the sub-contracting by General Contractors for Sub-contractor services and the purchase by General Contractors and Sub-contractors of materials, equipment, supplies and services

   is highly encouraged to the maximum extent possible, to be from persons residing within or businesses located within Ft. Pierce and St. Lucie County.

   
   

2. A Pre-bid Conference was conducted on February 28, 1992. The Minutes from the Pre-bid Conference reflect that Addendum No. 1 to the bid specifications provided to potential bidders a copy of the Department's Minority Business Enterprise Construction Directory listing DGS-certified minority business enterprises as of December 1991. Those Minutes also contain the following entry:

   
   

   1. Highlights of front-end of Project Manual

      * * *

      1. Page 14, Paragraph B-13B for reporting minority participation stipulates 21 percent goal:

         
         

         4 percent Black

         6 percent Hispanic

         11 percent American Women

         
         

         Contractors must thoroughly document their good effort. Procedure for documenting good effort can be obtained from Susan Hodge.

         * * *

         K. Page 89 - Post Bid Qualifications:

         
         

         • Form is to be completed and submitted within

           7 days after Bid Opening.

         • A few of the lowest Bidders will probably be required to submit this form.

         
         

3. At 2:00 p.m. on March 12, 1992, the Department received and opened eleven bids for the construction of the Fort Pierce Regional Service Center. Two of those bids were from Petitioner D. I. C. Commercial Construction Corp.

   (hereinafter "D.I.C.") and from Intervenor The Weitz Company, Inc., (hereinafter "Weitz").

   
   

4. At 3:00 p.m. on March 12 the Department posted its Bid Tabulation and Notice of Award Recommendation. That Bid Tabulation reflected that The Weitz Company of West Palm Beach submitted the lowest bid, in the amount of

   $5,545,800, and that D.I.C. Commercial Construction of Fort Pierce submitted the second lowest bid, in the amount of $5,553,600.

   
   

5. The Bid Tabulation and Notice of Award Recommendation further provided as follows:

   
   

   This is to advise you that the Division of Building Construction, Department of General Services, State of Florida, Has recommended that the contract for the referenced project be awarded to the firm of: THE WEITZ COMPANY,

   INC. in the amount of $5,545,800.00, accepting the BASE BID AND ALTERNATE #1 AND #2, determined to be the lowest acceptable qualified bid.

   
   

   Any bidder disputing the contract award recommendation must file . . . .

   
   

   Written notice of protest within seventy-two

   (72) hours after posting of this notice. A formal written protest by petition in compliance with Rule 13-4.12, Florida Administrative Code, and Section 120.53(5), Florida Statutes, within ten (10) days after the date on which he filed the notice of protest.

   * * *

   The Executive Director of the Department of General Services, State of Florida plans to

   act on the above recommendation after expiration of the seventy-two (72) hour notice period.

   
   

6. That proposed bid award took into consideration only the amount bid by each of the eleven bidders. In making its proposed bid award, the Department gave no consideration to its bid specifications that required the inclusion of at least 21 percent participation by subcontractors who were DGS-certified minority business enterprises (hereinafter "MBEs"), and which "highly encouraged to the maximum extent possible" the use of "persons residing within or businesses located within Ft. Pierce and St. Lucie County."

   
   

7. On March 16, 1992, D.I.C. timely filed its Notice of Protest to the proposed award of the contract to Weitz. On March 26, 1992, D.I.C. timely filed its Formal Notice of Protest to that proposed bid award.

   
   

8. Since the Weitz bid did not achieve the required 21 percent MBE participation, Weitz was required to submit documentation of its "good faith effort" to the Department along with other post-award qualification documentation. Weitz submitted its "good faith effort" documentation on March 16, 1992. Although the Department was aware that a Notice of Protest had been filed on March 16, the Department commenced its "good faith effort" review on March 17, 1992.

   
   

9. Weitz's good faith submittal recited that it had achieved a total DGS- certified MBE participation of 13.6 percent in its attempt to reach the goal of at least 21 percent. Of the required classes of 4 percent Black Americans, 6 percent Hispanic Americans, and 11 percent American Women, Weitz reported it had achieved 3.2 percent, 8.9 percent, and 1.5 percent respectively. One of the MBEs included within the percentage of Hispanic Americans was improperly

   included since that minority subcontractor is an Asian subcontractor, which is a different certification classification and not one of the types of minorities specifically required to be included in this project. That Asian subcontractor represented almost one-half of the Hispanic participation claimed by Weitz.

   Accordingly, Weitz failed to achieve the required overall percentage and failed to achieve the required percentage in any of the three categories.

   
   

10. Weitz's submittal also showed that it had included within its achieved percentages of participation subcontractors who were not yet DGS-certified, by listing three of those subcontractors under the heading of "pending minority certification." Although one of those did become certified by the time of the formal hearing in this cause, the other two have never applied for certification.

    
    

11. Although the bid specifications use the language DGS-certified MBE subcontractors for inclusion in the 21 percent participation requirement, it is clear that D.I.C., Weitz, and the Department believed that the bid specifications meant certified or certifiable. The Department's policy is that the MBE must be certified by DGS, not on the date of bid submittal, but by the time that the Department enters into the construction contract with the prime contractor. It is also clear that the Department began tracking the efforts of Weitz's subcontractors to become certified by DGS and became involved in the certification process for Weitz's subcontractors who were not yet DGS-certified.

    
    

12. Although Weitz had received 21 bids from DGS-certified MBEs, it chose to use the bids of only five. The bids of the others were rejected because Weitz had made the prior determination that it would use the bid of a DGS- certified MBE only if that subcontractor submitted the low bid for that particular portion of the work. In other words, Weitz's focus was on submitting the lowest possible bid rather than on submitting a bid which included the required MBE participation goal.

    
    

13. On the other hand, when D.I.C. received and reviewed its bid package, it made the determination that the Department's requirement of at least 21 percent minority participation was easily achievable. Accordingly, D.I.C. did not prepare any "good faith effort" documentation since the bid specifications clearly stated that the Department would consider good faith efforts only if the

    21 percent goal were not attainable. D.I.C. made the decision that it would include the required percentage, both overall and in each individual category, in its bid submittal and that, if it could not, it would simply not submit a bid on this construction project.

    
    

14. D.I.C. included in its bid the bids of MBE subcontractors who it believed were either DGS-certified or certifiable for a total participation of

    26.5 percent. Included within that overall participation D.I.C. exceeded the required percentage for Black Americans, exceeded the required participation for Hispanic Americans, and fell barely short of meeting the required participation for American Women.

    
    

15. After D.I.C. filed its Notice of Protest, although the Department freely communicated with Weitz and Weitz's subcontractors in the Department's efforts to certify those subcontractors to be used by Weitz who were not certified, the Department ceased communication with D.I.C. and D.I.C.'s subcontractors. Further, the Division of Building Construction of the Department commenced and continued in its efforts to review Weitz's "good faith" submittal. The Department further rejected communication from the supervisor in

    its own Minority Business Enterprise Assistance Office regarding the Department's good faith efforts review.

    
    

16. When conducting its good faith review, the Department looked only at the documentation submitted by Weitz. It made no effort to ascertain if there were things that Weitz could have done that Weitz chose not to do. Further, in conducting its good faith effort review, the Department reviewed Weitz's documentation under the belief that there was no specific MBE goal for this project.

    
    

17. The Department's belief that there was no required MBE participation for this project, contrary to the bid specifications, was based upon the fact that the Legislature had given the Department a goal of at least 21 percent minority participation with the breakdown for the three categories of MBEs listed in the bid specifications as an overall Department goal. Although not disclosed in the bid specifications, the Department looked to meet its goal through the totality of its construction contracts and not pursuant to any individual contract. By March of 1992, the Department had already exceeded its statutorily-imposed goal by 140 percent for that fiscal year. Further, it was the Department's policy and practice to include in its reports to the Legislature concerning whether the Department had met its own statutorily- imposed MBE participation goal the participation of all minority subcontractors in all of the Department's construction contracts without regard to whether those subcontractors were DGS-certified by the time that the Department entered into those construction contracts with the prime contractors.

    
    

18. In reviewing Weitz's good faith efforts, the Department utilized the criteria set forth in the bid specifications. It looked at each of the eight criteria listed in the bid specifications and then looked at the documentation submitted by Weitz to ascertain if there had been an effort to comply. The first criterion considers whether the contractor attended presolicitation meetings scheduled by the agency to inform minority business enterprises of the subcontracting opportunity. Since the Department held no such meeting regarding this construction project, none of the bidders could have met this criterion.

    
    

19. The second criterion relates to advertising in general circulation, trade association, and/or minority-focus media. Weitz ran an ad one time only on Sunday, March 1, in the Palm Beach Post and in the Fort Lauderdale News/Sun- Sentinel. Weitz placed no other ads.

    
    

20. The third criterion requires providing written notice to a reasonable number of specific minority business enterprises that their interest is being solicited in sufficient time to allow them to participate effectively. Weitz sent 98 letters throughout the state of Florida to MBEs listed in the Department's December 1991 directory. That letter was dated February 25, 1992.

    
    

21. The fourth criterion requires following up initial solicitations by contacting MBEs or minority persons to determine with certainty whether they are interested. Weitz sent a follow-up letter dated March 4 to the same 98 addressees as its prior letter.

    
    

22. The fifth criterion requires selecting portions of the work to be performed by MBEs to increase the likelihood of meeting the MBE goals, including, where appropriate, breaking down contracts into economically feasible units to facilitate MBE participation. Weitz's documentation reflected that the work of several trades had been broken down into smaller units.

23. The sixth criterion requires providing interested MBEs or minority persons with adequate information about the plans, specifications, and requirements of the contract or the availability of jobs. The advertisement placed by Weitz gave no information other than that it was seeking bids from certified MBEs for construction of the Regional Service Center in Fort Pierce, that the bid deadline was March 12, and that plans were available for review at Weitz's office in West Palm Beach. The first letter sent by Weitz advised the recipient of the square footage of the project, that Weitz might assist subcontractors on their bonding requirement, and that plans were available for review at Weitz's office in West Palm Beach and at local plan rooms, or full sets of plans and specifications could be purchased from Weitz at a price of

    $300 a set. The letter further gave the names of two persons at Weitz's office who could be contacted. The follow-up letter sent by Weitz contained the same information.

    
    

24. The seventh criterion requires negotiating in good faith with interested minority business enterprises or minority persons and not rejecting them as unqualified without sound reasons based upon a thorough investigation of their capabilities. The Weitz documentation contained a statement saying that it had not rejected any minorities as being unqualified.

    
    

25. The eighth criterion requires effectively using services of available community organizations; minority contractors' groups; local, state, and federal minority business assistance offices; and other organizations that provide assistance in the recruitment and placement of minority business enterprises or minority persons. Weitz sent letters to six organizations in the state of Florida stating that it was seeking proposals for the Fort Pierce Regional Service Center, that it had contacted those companies listed in the December 1991 directory, that plans were available for review at Weitz's office in West Palm Beach and at local plan rooms, and that the recipients should refer any known interested persons to Weitz.

    
    

26. It is clear that Weitz made an effort to obtain minority participation. It did not, however, use its "best ability and effort" to obtain minority participation. Weitz's efforts did result in the receipt of a substantial number of bids from DGS-certified MBEs. It does not, however, appear that Weitz used its best effort to assist interested MBEs to participate in the construction project since it did not use any subcontractor's bid unless it was the low bid.

    
    

27. Weitz's documentation contains a copy of each of the letters sent to the 98 businesses in the state of Florida and also contains some notations of telephone contact between Weitz and some MBEs. The documentation does not support the proposition, however, that Weitz used its best efforts to work with individual MBEs to solicit their interest; to ascertain with certainty their level of interest; to make the plans and bid specifications available to them; to organize the scope of work into smaller units, if necessary, to enable MBEs to effectively participate in the bidding process; and, most importantly, to utilize bids received by those MBEs.

    
    

28. Although the bid specifications specifically stated that the minority participation was to be at least 21 percent and, if that 21 percent was not attainable, the Department would consider good faith efforts, the Department made no independent determination of whether 21 percent DGS-certified MBE participation on this project was attainable. Contrary to the language of the bid specifications, the Department interpreted the criteria to be a requirement that the bidder either attain 21 percent or submit good faith efforts. Since

    Weitz was the apparent low bidder by price, and since Weitz did not achieve the

    21 percent participation, the Department assumed that such level of participation could not be attained and that Weitz could instead submit its "good faith effort."

    
    

29. Although a provision was specifically written into the bid specifications for this project that the bidders were encouraged to use local labor from the Fort Pierce and St. Lucie County areas, the Department developed no criteria by which to judge whether the bidders attempted to comply with that bid specification. Additionally, the Department failed to review the bids received for this construction project to see if efforts had been made to include local labor. In essence, this bid specification was ignored by the Department.

    
    

30. Although Weitz included in its "good faith effort" submittal a statement that it would utilize local labor by using its own employees, Weitz is located in West Palm Beach, not in St. Lucie County or in Fort Pierce. Although Weitz further included a statement that it might utilize up to twelve companies located in that area, the Department made no determination as to the number of qualified companies located there. The Department was not aware of the fact that Weitz had solicited only by letter two DGS-certified subcontractors in St. Lucie County and only three DGS-certified subcontractors in surrounding counties. On the other hand, D.I.C. had expended extensive efforts to involve businesses in the Fort Pierce and St. Lucie County area. Although Weitz attached to its Petition to Intervene in this proceeding a list of St. Lucie County firms which were encouraged to submit bids and a list of other firms who employ a majority of St. Lucie County employees on projects located in Fort Pierce which were encouraged to submit bids, those documents were never presented to, or considered by, the Department when it evaluated Weitz's bid.

    
    

31. Section B-21 of the bid specifications provides, in essence, that the contract would be awarded to the bidder submitting the lowest bid. Weitz's bid was slightly lower than that of D.I.C.--a difference of $7,800 on bids of over five and a half million dollars. D.I.C.'s bid could have been $60,000 lower if it had not sought to comply with the 21 percent MBE requirement set forth in the bid specifications. Its bid would have been lower if it had, like Weitz, rejected all bids from DGS-certified MBE subcontractors who were not also the lowest bidder in that particular trade. D.I.C.'s belief that the Department would require compliance with all provisions in the bid specifications caused D.I.C.'s bid to be higher than that of Weitz, which placed emphasis on the lowest price rather than the lowest price plus effective effort at meeting the MBE participation specification. By focusing on one bid specification and not on all of the bid specifications, the Department gave Weitz an unfair advantage over other bidders.

    
    

32. By allowing Weitz to submit "good faith effort" rather than comply with the 21 percent minimum participation requirement, the Department, in essence, allowed Weitz to make a subjective determination that the 21 percent requirement was not attainable. It was the Department's duty under the bid specifications to make its own objective determination that the 21 percent bid specification was not attainable before the alternative consideration of "good faith effort" became relevant to the bid award recommendation. The Department could have, for example, looked at the other bids submitted to see if the other bidders had attained the 21 percent participation requirement. Under the Department's approach, i.e., relying solely on Weitz's representation and considering only Weitz's bid, it is possible that the other bidders attained the

    21 percent requirement and that only Weitz did not comply with that bid

    specification. The Department's procedure rendered the 21 percent bid specification meaningless, which fact was not known in advance by all of the bidders.

    
    

33. By failing to determine whether the goal for MBE participation set forth as a bid specification was attainable, the Department failed to determine whether Weitz had complied with all bid specification requirements. Accordingly, the Department did not in fact make a determination that Weitz was a responsive bidder by meeting all bid specifications. Further, the Department made no determination in fact as to whether any of the other bidders, including D.I.C., were responsive to the Department's own bid specifications.

    Accordingly, there has been no determination that Weitz, or any other bidder, is the lowest responsive bidder.

    
    

34. Similarly, the Department made no determination as to whether Weitz had complied with Section B-13C of the bid specifications which provided that bidders were "highly encouraged to the maximum extent possible" to utilize persons residing within or businesses located within Fort Pierce and St. Lucie County. D.I.C., with offices in Fort Pierce, submitted a bid which included 67 percent local participation. Weitz, with offices in West Palm Beach, submitted a bid representing that it would utilize its own employees for 15 percent of the contract (a different bid specification) and represented that it would probably utilize up to a dozen local companies. Since it is clear that Weitz solicited subcontractors from all over the state of Florida, Weitz made no showing that it had attempted "to the maximum extent possible" to utilize persons and businesses from Fort Pierce and St. Lucie County. Additionally, Weitz's single advertisement in the two newspapers chosen by it does not show an intent to obtain local participation since the Fort Lauderdale News/Sun-Sentinel is not sold in either Fort Pierce or St. Lucie County and the Palm Beach Post is obtainable in Fort Pierce only at 7-11 convenience stores and in newspaper vending machines. The Department made no determination as to whether Weitz, or any other bidder, was responsive to this bid specification. Further, the Department did not advise bidders that it might not enforce this bid specification in the same manner that the Department did not advise all bidders that it might not enforce the 21 percent bid specification.

    
    

35. In short, the procedures utilized by the Department in evaluating the bids submitted for this project did not afford fair and equal review of all bids submitted. Further, Weitz was given a competitive advantage by the Department's determination that Weitz should be given the bid award based solely on the Weitz bid being the lowest submitted.

    
    

    CONCLUSIONS OF LAW

    
    

36. The Division of Administrative Hearings has jurisdiction over the parties hereto and the subject matter hereof. Section 120.57(1), Florida Statutes.

    
    

37. Although proceedings conducted by the Division of Administrative Hearings pursuant to Section 120.57(1), Florida Statutes, are generally de novo proceedings, in a bid protest such as this, filed pursuant to Section 120.53(5), Florida Statutes, the Hearing Officer's sole responsibility is to ascertain whether the agency acted fraudulently, arbitrarily, illegally, or dishonestly. Moore d/b/a Fort Knox Center v. Department of Health and Rehabilitative Services, et al., 596 So.2d 759 (Fla. 1st Dist. 1992); Scientific Games, Inc.,

    v. Dittler Bros., Inc., et al., 586 So.2d 1128 (Fla. 1st Dist. 1991); Department of Transportation v. Groves-Watkins Constructors, Inc., 530 So.2d 912 (Fla.

    1988); Liberty County v. Baxter's Asphalt & Concrete, Inc., 421 So.2d 505 (Fla. 1982). Petitioner has met its burden of proving that the Department has acted arbitrarily and illegally in its proposed award of the contract for the Fort Pierce Regional Service Center to Weitz.

    
    

38. The Department issued bid specifications for this project which contained certain requirements which were never considered by the Department in proposing its bid award to Weitz. The Advertisement for Bids, the Invitation to Bid form letter, and Section B-13B of the bid specifications set forth the requirement that the bidder utilize at least 21 percent DGS-certified MBE subcontractors composed of three specific categories. According to the terms of the bid package, if that minority percentage participation could not be obtained, then, and only then, would the Department consider "good faith effort." Although it is true, as is argued by the Department and by Weitz, that Section B-13B does use the word "encourage," the Advertisement for Bids and the Invitation to Bid form letter do not use that word. Further, the use of the word "encourage" does not mean that this requirement is not a requirement of the bid specifications. Bid specifications tell all interested parties what must be included in their bids to be considered responsive. If the Department did not intend to require the bidders to attempt to attain a 21 percent minority participation, that provision should not have been contained in the bid documents.

    
    

39. Nowhere in the bid package did the Department explain to interested parties that the 21 percent minority participation requirement was a requirement imposed by the Legislature on the Department itself. Section 287.042(4)(f), Florida Statutes. Nowhere in the bid package did the Department advise interested parties that the Department intended to require that minority participation only when the Department itself had not met its own goal. Nowhere in the bid package did the Department tell interested parties that since the Department would exceed its Departmental goal for the 1991-92 fiscal year, the Department would be placing no emphasis on that requirement in the bid specifications. It is clear that the Department's intent was different from the language utilized by the Department in its bid package, and no potential bidders could have known in advance that it would not be necessary to comply with the 21 percent participation requirement when they submitted their bids.

    
    

40. Similarly, Section B-13C told potential bidders that they were "highly encouraged to the maximum extent possible" to utilize local persons and businesses. The propriety of that bid specification is not involved in this proceeding since no one filed a challenge to the bid specifications themselves. Since that requirement of utilizing local persons and businesses to the maximum extent possible is one of the provisions in the bid specifications, it was mandatory that the Department review bid submittals with that bid specification in mind.

    
    

41. The evidence is clear that the inclusion of the specified amount of minority participation and the inclusion of local businesses and persons are two provisions which impact the price which can be bid for a construction project. The testimony is uncontroverted that D.I.C.'s bid would have been substantially lower than Weitz's bid if D.I.C. had, like Weitz, chosen to de-emphasize the minority participation and local business and residents requirements and instead accept only bids from subcontractors if they were the low bid in that particular trade.

    
    

42. It is clear that the Department did not review the Weitz bid before issuing its Notice of Award Recommendation in order to ascertain whether it met

    all bid specifications. The bid submittals of Weitz and of D.I.C. do not contain the information required in order that the Department could determine whether local businesses and persons had been included in the bid or whether sufficient DGS-certified minorities had been included in the bid. The bid submittal documents do not require the disclosure of that information when the bid is submitted. Although the required bid form did require the bidder to provide the names of subcontractors, Weitz's subcontractor listing in the bid documents provides only what appears to be the first word in each business's name, with no address being provided for that business in order that anyone could determine if that business was in fact a DGS-certified MBE subcontractor. More importantly, at the bid submittal deadline, the bidders were not required to disclose the amount of the contract price which would be expended with each of those subcontractors in order to determine what percentage of the work was being committed to be done by DGS-certified MBEs.

    
    

43. Neither Weitz nor the Department has explained how Weitz's bid could have been determined to be responsive to bid specifications when the bid submittal itself did not contain all of the information necessary to meet the bid specifications. Since the Department chose the Weitz bid solely based on that bid being the lowest bid submitted for the project, the Department acted arbitrarily and illegally in proposing to award the bid to Weitz.

    
    

44. Nowhere in the bid specifications does the Department disclose that the DGS-certified MBE subcontractors to be included within the minority participation requirement do not have to be certified at the time of the bid submittal but only need to be certified by the time that the Department enters into the contract with the prime contractor. In other words, under the Department's policy, at the time of bid submittal, the MBE subcontractors either must be DGS-certified or they must be certifiable, and the certification process must be complete by the time that the contract for the project is entered into between the Department and the winning bidder. Once again, the language in the Department's bid specifications does not reflect the Department's interpretation of that requirement. Only bidders familiar with the Department's past practices would have that knowledge.

    
    

45. The deadline for submittal was 2:00 p.m. on March 12, 1992. At that time, the Department opened the bids, went through each of the bids to determine what documents had been filed, and read aloud the amount of each bid. At 3:00

    p.m. on that same day, the Bid Tabulation and Notice of Award Recommendation was posted. Although the Department and Weitz argued that there has been no bid award yet since that document constitutes only the recommendation to the Division Director to award the contract to Weitz based upon Weitz being the apparent low bidder, that argument is in error. The document itself states that the bid will be awarded to Weitz unless a protest is filed within 72 hours. Although it is clear that the bid specifications gave the apparent low bidder up to 14 days after the proposed bid award to submit additional documentation called post-award qualification documentation, nothing in the Bid Tabulation and Notice of Award Recommendation or in the bid package indicated that there would be a second determination of responsiveness after all of the post-qualification documents had been submitted, and then a determination would be made to whom the contract would be awarded. Further, there is no suggestion that any other bidder would have been given a point of entry to protest the award of a bid after the 14 days for the apparent low bidder to submit additional documentation required in the bid specifications. Since the Department clearly advised all bidders in writing that the point of entry to challenge the bid award was within

    72 hours of 3:00 p.m. on March 12, there is no evidence which contravenes the obvious interpretation of that point of entry notification, i.e., that the

    Department intended to award the contract to Weitz unless a bid protest was filed within 72 hours from 3:00 p.m. on March 12.

    
    

46. Since the bid forms created by the Department and submitted by the bidders involved in this competitive bidding process did not disclose the percentage of DGS-certified MBE participation, the Department could not have determined prior to 3:00 p.m. on March 12 whether Weitz had achieved the 21 percent minimum participation requirement and the Department could not have declared Weitz responsive to that bid specification. Even if the Department could have determined, somehow, the percentage of the total contact price for which Weitz had committed the use of DGS-certified MBE subcontractors, it was clear that Weitz did not attain the minimal 21 percent goal. As set forth in the bid package, "good faith effort" would be considered only if the 21 percent was unattainable. The Department made no determination that achieving 21 percent for this project was not attainable. One of the Department's witnesses testified that a bidder could either attain the 21 percent or could submit good faith efforts. That view is not supported by the language of the bid documents.

    
    

47. The evidence in this cause is insufficient to determine whether the 21 percent minority participation goal was attainable on this construction project. Because Weitz did not attain it, the Department permitted Weitz to submit "good faith efforts" instead. The evidence indicates that the "good faith efforts" reviewers sought the advice of a Department attorney, who advised them that to determine whether the 21 percent was attainable, they should look at only Weitz's bid. That advice does not comport to the holding in the case of C. H. Barco Contracting Co. v. Department of Transportation, 483 So.2d 796 (Fla. 1st Dist. 1986). In Barco, the appellate court looked at the bids of all bidders to ascertain the extent to which all bidders included DBE participation in order to determine whether the low bidder's minority participation efforts were sufficient.

    
    

48. The Department's determination that Weitz made "good faith effort" to include minority participation was factually and legally erroneous. As to its failure to comply with the law, Section 120.53(5)(c), Florida Statutes, provides that the agency involved shall stop the contract award process upon the receipt of a timely protest until the subject of the protest has been resolved by final agency action. The Department received D.I.C.'s Notice of Protest on March 16. The Department began its "good faith effort" review on March 17. Thus, the Department continued with the contract award process after receiving a timely protest, in contravention of the requirements of that statute. The Department's continued review of Weitz's "good faith effort" which resulted in a determination that Weitz had made sufficient efforts did not comport with the law, and Weitz's "good faith efforts" should not have been reviewed once the protest was filed.

    
    

49. As to the factual deficiency in the Department's determination of "good faith effort" on the part of Weitz, it is clear that Weitz performed an act to comply with each of the criteria by which "good faith effort" would be judged. It is clear that Weitz made an effort to comply with the 21 percent requirement although the record is not so clear that Weitz made a "good faith effort." For example, Weitz ran an ad in the newspaper, but the ad gave scant information regarding the project. The ad simply stated that there was such a project and that plans were available at Weitz's office in West Palm Beach. That type of effort is certainly less than the Department's requirement which was described by the primary reviewer of "good faith effort" as being "the bidder's best ability and efforts to obtain minority participation."

50. What Weitz did, in reality, is use its efforts to obtain bids from DGS-certified MBEs; however, Weitz did not use its best efforts to obtain MBE participation in the project. The testimony is uncontroverted that Weitz received 21 bids from DGS-certified MBEs but used only five because only five were the low bidders in those particular trades. Weitz made the business

    judgment to not utilize 16 of the bids in order to be able to bid the project at the lowest possible price. One of the Department's reviewers testified that Weitz's documentation of its "good faith efforts" was reviewed to determine if the "intent" of the bid specifications had been met. It is suggested that the language of the bid specifications must also be met. The solicitation of bids only, without using the qualified bids received, is insufficient to satisfy the requirement stated in the criteria that the solicitation of qualified minorities be done in such a manner that the MBEs would then be able to "participate effectively" in the project.

    
    

51. While an agency has wide discretion in evaluating bids and awarding contracts, it may not act arbitrarily or illegally. It cannot act so as to subvert the purpose of the competitive bid process by actions which favor one bidder over another. In essence, this proceeding is a case involving two bidders. One bidder submitted a bid based upon all of the bid specifications and lost. The other bidder submitted a bid based on some of the bid specifications and won. It is clear that in this situation the Department has, by its actions, subverted the competitive bidding process.

    
    

52. The Department overlooked or ignored two of the requirements contained in its own bid specification documents. When the Department made its preliminary determination that Weitz should receive the bid award, the Department did not have in front of it, according to Weitz's bid which was admitted in evidence, any evidence as to whether Weitz had complied with the minority participation requirement or with the local residents and businesses requirement. Since both requirements were contained within the bid specifications, both requirements required evaluation before a determination of responsiveness to the bid specifications could be made. As to the minority participation requirement, the Department believed that it did not even apply to the project in question. As to the local subcontractor requirement, the Department developed no criteria to determine compliance with that bid specification provision. Accordingly, the Department, in fact, never determined responsiveness of the Weitz bid to the bid specifications. Further, after the protest was filed, the Department continued with the contract award process by commencing thereafter its "good faith effort" review, eventually making a determination that Weitz had submitted documentation of "good faith effort."

    The Department has acted both arbitrarily and illegally in its intended bid award.

    
    

53. D.I.C. argues that the Weitz bid should be rejected and the contract should be awarded to D.I.C. or, alternatively, all bids should be rejected. As to D.I.C.'s request that the bid be awarded to it, such would be inappropriate under the facts of this case. There is no showing that the Department evaluated any bid other than the Weitz bid other than to read aloud the price bid by all eleven bidders. Since the Department has never afforded itself the opportunity to determine the responsiveness of the bids received by it, it would be inappropriate to recommend that the Department reject Weitz's bid and award the bid to D.I.C.

    
    

54. None of the parties to this action have suggested that the Department evaluate all of the bids and make a new determination as to the bid award based upon the bid specifications and the law. However, the Department has the

    discretion to do so. If the Department chooses not to evaluate all of the bids already received by it, in accordance with the specifications contained in the Department's bid package, the Department should reject all bids. The Department should then determine the requirements it wishes to impose on bids for the project in question, should write its bid specifications including only those criteria which it intends to utilize, should then review all bids received for responsiveness to all bid specification criteria, and should then make its determination as to the lowest responsive and responsible bidder.

    
    

55. At the commencement of the final hearing in this cause D.I.C. raised for the first time as an additional basis for its protest Weitz's failure to comply with the Florida Trench Safety Act, Section 553.63(1), Florida Statutes. Upon objection of the other parties, Petitioner was precluded from trying that additional issue in this proceeding. The other parties were not on notice that

    D.I.C. would raise that issue, and D.I.C. was held to have waived the issue by not presenting it in either its Notice of Protest or in its Formal Notice of Protest. Petitioner was, however, permitted to place its argument on the record, thereby preserving that point for final agency action and for appellate review.

    
    

56. The Department has filed post-hearing a Motion to Strike. In its Motion, the Department alleges that D.I.C. included in its proposed recommended order one finding of fact and one paragraph of argument in the conclusions of law section of its proposed recommended order regarding the Florida Trench Safety Act. The Department alleges such inclusion is inappropriate, and, further, requests a determination in this Recommended Order that such inclusion was interposed for an improper purpose, such as to harass or to cause unnecessary delay, or for frivolous purposes, or for needless increase in the cost of litigation, in violation of Section 120.57(1)(b)5., Florida Statutes. The Department, therefore, seeks an award of costs and reasonable attorney's fees "incurred as a result of having to respond and defend against" that proposed finding of fact and that paragraph in D.I.C.'s proposed conclusions of law.

    
    

57. D.I.C.'s proposed recommended order is 31 pages long. It cannot be concluded that D.I.C. included that single finding of fact and that single paragraph of argument for an improper purpose rather than for a proper purpose, i.e., preserving the record regarding that issue. It further cannot be concluded that the Department has incurred costs and attorney's fees by having to "defend" itself against the inclusion of that language in D.I.C.'s proposed recommended order. In other words, the parties having been precluded from trying that issue, the resolution of this bid protest would not pivot on that issue being memorialized in D.I.C.'s proposed recommended order. In sum, the Department's Motion to Strike was unnecessary and is denied.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered rejecting all bids on Project No. DGS- 88114000 for the Fort Pierce Regional Service Center.

RECOMMENDED this 25th day of June, 1992, at Tallahassee, Florida.

LINDA M. RIGOT

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 25th day of June, 1992.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-2370BID

1. Petitioner's proposed findings of fact numbered 1-4, 7-14, 17, 20, 29, 30, 33, 35, 36, 39, 43, 45-48, and 55 have been adopted either verbatim or in substance in this Recommended Order.

2. Petitioner's proposed findings of fact numbered 5, 6, 15, and 18 have been rejected as not being supported by the weight of the competent evidence in this cause.

3. Petitioner's proposed findings of fact numbered 16, 21-28, 34, 37, 38, 40, 42, 49-52, and 54 have been rejected as being unnecessary to the issues involved herein.

4. Petitioner's proposed findings of fact numbered 19 and 53 have been rejected as being irrelevant to the issues under consideration in this cause.

5. Petitioner's proposed findings of fact numbered 31, 32, 41, and 44 have been rejected as not constituting findings of fact but rather as constituting argument of counsel, conclusions of law, or recitation of the testimony.

6. Respondent's proposed findings of fact numbered 1, 2, 4, 7, 8, 11, 17, 19, 21, 22, 24-28, and 37 have been adopted either verbatim or in substance in this Recommended Order.

7. Respondent's proposed findings of fact numbered 3, 5, 6, 20, 29, 31, 33, 35, 36, and 38-41 have been rejected as not being supported by the weight of the competent evidence in this cause.

8. Respondent's proposed findings of fact numbered 9, 10, 12-14, and 34 have been rejected as being unnecessary to the issues involved herein.

9. Respondent's proposed findings of fact numbered 15, 16, 18, 30, and 32 have been rejected as being irrelevant to the issues under consideration in this cause.

10. Respondent's proposed finding of fact numbered 23 has been rejected as not constituting findings of fact but rather as constituting argument of counsel, conclusions of law, or recitation of the testimony.

11. Intervenor's proposed findings of fact numbered 1 and 10 have been adopted either verbatim or in substance in this Recommended Order.

12. Intervenor's proposed findings of fact numbered 2, 3, 7, 12, 15, and

    16 have been rejected as not being supported by the weight of the competent evidence in this cause.

13. Intervenor's proposed findings of fact numbered 4-6, 8, 9, 11, 13, and

14 have been rejected as not constituting findings of fact but rather as constituting argument of counsel, conclusions of law, or recitation of the testimony.

COPIES FURNISHED:

Melinda S. Gentile, Esquire Ruden, Barnett, McClosky, Smith,

Schuster & Russell, P.A.

200 East Broward Boulevard Post Office Box 1900

Fort Lauderdale, Florida 33302

Stephen S. Mathues, Esquire Department of General Services Knight Building, Suite 309 2737 Centerview Drive

Tallahassee, Florida 32399-0950

Bruce G. Alexander, Esquire Boose Casey Ciklin Lubitz

Martens McBane & O'Connell Suite 1900

515 North Flagler Drive Post Office Box 024626

West Palm Beach, Florida 33402

Neil H. Butler, Esquire Butler & Long, P.A. Post Office Box 839

Tallahassee, Florida 32302

Ronald W. Thomas Executive Director

Department of General Services Knight Building, Suite 307 2737 Centerview Drive

Tallahassee, Florida 32399-0950

Susan Kirkland, General Counsel Department of General Services Knight Building, Suite 309

2737 Centerview Drive

Tallahassee, Florida 32399-0950

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 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.

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

AGENCY FINAL ORDER

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

STATE OF FLORIDA DEPARTMENT OF MANAGEMENT SERVICES

1. I. C. COMMERCIAL CONSTRUCTION CORP.,

   
   

   Petitioner

   
   

   vs. Case No. 92-2370BID

   
   

   DEPARTMENT OF MANAGEMENT SERVICES,

   
   

   Respondent,

   and

   
   

   THE WEITZ COMPANY, INC.,

   
   

   Intervenor.

   /

   
   

   FINAL ORDER

   
   

   On June 25, 1992, the Division of Administrative Hearings (DOAH) Hearing Officer submitted his Recommended Order to the Department of management Services (DMS), a copy of which is attached as Exhibit "A". Pursuant to Section 120.57(1)(b)9, F.S., and F.A.C., Rule 13-4.017, the parties were allowed to file written exceptions to the Recommended Order. Exceptions were filed by DMS and Intervenor, The Weitz Company, Inc., (Weitz), and Weitz also filed a proposed substituted order. DMS in accordance with F.A.C., Rule 13-4.017(3) then filed a memorandum in response to Weitz's exceptions and exceptions to Weitz's proposed substituted order. The Recommended Order thereafter came before me, as head of the Department, for final agency action.

   
   

   RULINGS ON EXCEPTIONS

   
   

   Exceptions of DMS:

   
   

   Paragraphs 1, 2 and 3 of DMS' Exceptions address portions of the Conclusions of Law found at pages 27 and 30 of the Recommended Order, which relate to the actions of DMS subsequent to the filing of the notice of protest on March 16, 1992, and prior to the filing of the formal written protest on March 26, 1992. The Hearing Officer concluded that the commencement of the "good faith review" after March 17 but prior to March 26 was contrary to Sec. 120.53(5)(c), Fla. Stat., and, therefore, arbitrary and illegal.

   
   

   This conclusion results from an erroneous reading of Sec. 120.53(5)(c) Fla.

   Stat. Sec. 120.53(5)(b) requires a party objecting to or protesting a bid proceeding, to file two separate documents. The first is the notice of protest and must be filed within 72 hours of the posting of the bid tabulation. The

   second is a formal written protest which must be filed within 10 days after the date the notice of protest is filed. Sec. 120.53(5)(c) then provides as follows:

   
   

   Upon receipt of the formal written protest which has been timely filed the agency shall stop the bid solicitation process or the contract award process until the subject of the protest is resolved by final agency action, ...

   (emphasis supplied)

   
   

   The DMS was acting within its legal authority to commence the "good faith review" on March 17, 1992, and had to cease such activity only upon the filing of the formal written protest on March 26, 1992.

   
   

   Paragraphs 4 and 5 of DMS' Exceptions relate to the following conclusion of law found at pages 28 and 29 of the Recommended Order:

   
   

   The solicitation of bids only, without using the qualified bids received, is insufficient to satisfy the requirement stated in the criteria that the solicitation of qualified minorities is done in such a manner that the MBEs would then be able to "participate effectively" in the project.

   
   

   This conclusion is based in great part on Finding of Fact 15, which found that Weitz utilized the bids of MBE subcontractors only if that subcontractor's bid was low. On that basis, Weitz's bid included only five MBE subcontractors out of twenty-one from which it solicited bids. The Hearing Officer concluded that this action denied qualified minorities the ability to "participate effectively" in the project. It must be concluded that the language "participate effectively" refers to the third criterion found in Sec. 287.0945(3)(b)3, which states as follows:

   
   

   Whether the contractor provided written notice to a reasonable number of specific minority business enterprises that their interest in the contract was being solicited in sufficient time to allow the minority business enterprises to participate effectively; (emphasis supplied)

   
   

   since that phrase appears nowhere else in this section.

   
   

   In the first place, this section does not deal with the issue of accepting a higher minority bid over a lower non-minority bid. This section deals with giving adequate notice to minority enterprises to afford them enough time to participate effectively. There was no evidence in the record that there was insufficient time for minority subcontractors to participate. Secondly, there is no indication in Sec. 287.0945 which suggests that the bid of a minority subcontractor must be accepted, regardless of the price. In fact, the only reference to money as a consideration is found in Sec. 287.0945(3)(b)5, which suggests that contracts may be broken down into economically feasible units to facilitate MBE participation. To require otherwise would be contradictory to

   the purpose of competitive bidding. Hotel China & Glass Co. v. Board of Public Instruction, 130 So.2d 78, (Fla. 1st DCA, 1961).

   
   

   Exceptions to Findings of Fact of Weitz:

   
   

   Exception A is addressed above.

   
   

   Exceptions B, C, D, E, F, G, K, L, M, N, O, P and Q take exception to specific findings of fact of the Hearing Officer, each of which is supported by competent, substantial evidence. So long as such basis exists, the findings of fact of the Hearing Officer cannot be set aside. However, for reasons more fully set forth below, such excepted findings are irrelevant.

   
   

   Exception H is granted as Finding of Fact 20 is not supported by competent, substantial evidence. Pages 341 through 352 of the transcript of proceedings makes it clear that, while the overall department goals for minority participation had been exceeded, there remains concern that there be minority participation on each agency project. Further, the last sentence of Finding of Fact 20 finds that DMS includes in its reports to the Legislature, participation by all minorities, regardless of DMS certification.

   
   

   At pages 341 and 342 of the transcript of proceedings, the agency representative stated that any minority contractor could be utilized for an agency project, but that only those contractors who are certified can be counted toward the agency's minority participation goal. (emphasis supplied)

   
   

   Exception I is rejected as being either irrelevant or argumentative.

   
   

   Exception J is granted insofar as the Findings of Fact require a contractor to use either a "best effort" or "best ability and effort" to obtain minority participation. The bid specifications and Sec. 287.0945, Fla. Stat. require the agency and the contractor to use "good faith effort" to achieve such participation.

   
   

   It is ORDERED by the Department of Management Services:

   
   

   1. It is not the policy of the Department of Management Services to award a contract to a bidder in an instance in which the specifications are found to be misleading in some material matter. In this case, there existed, in the bid documents, conflicting language whether the twenty-one percent minority participation was a requirement or merely a goal. To the extent that some bidders may have perceived the percentage a requirement, their bids may have been higher than the apparent low bid of Weitz, since Weitz experienced the fact that only five out of twenty-one minority subcontractor bids were the low bids. In such cases, it cannot be said that the conflict in language of the bid documents was a minor irregularity.

      
      

   2. It makes no difference in this case whether Weitz made a good faith effort to reach a minority participation goal of twenty-one percent. So long as the bid documents could be interpreted to require twenty-one percent minority participation, and a protesting bidder so interpreted the bid documents to its disadvantage, one bidder may have enjoyed a competitive advantage over the other. In such instances, the award of a contract will not be permitted. Wester v. Belote, 102 Fla. 976, 138 So. 721 (Fla. 1931).

      
      

   3. The Recommended Ordered, except as specifically rejected or amended above, is hereby adopted.

Dated this 2nd day of September, 1992.

LARRY STRONG

Acting Secretary

Department of Management Services

COPIES FURNISHED:

Melinda S. Gentile Stephen S. Mathues Ruden, Barnett, McClosky, Smith, Department of Management

Schuster & Russell, P.A. Services

200 East Broward Boulevard Office of the General

Post Office Box 1900 2737 Counsel

Fort Lauderdale, Florida 33302 Suite 309, Knight Bldg.

2727 Centerview Dr.

Bruce G. Alexander Tallahassee, FL 32399 Boose Casey Ciklin Lubitz Martnes

McBane & O'Connell

515 North Flagler Drive Suite 1900

P.O. Drawer 024626

West Palm Beach, Florida 33402-4626

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is entitled to judicial review which shall be instituted by filing one copy of the Notice of Appeal with the agency clerk of the Department of Management Services, and a second copy, along with filings fees as prescribed by law, with the District Court of Appeal in the Appellate District where the Agency maintains its headquarters or where a party resides. Review proceedings shall be conducted in accordance with the Florida Appellate Rules. The Noticed of Appeal must be filed within 30 days of rendition of the order to be reviewed.

Docket for Case No: 92-002370BID

Orders for Case No: 92-002370BID