STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AMERICAN ASPHALT, INC., )

)

Petitioners, )

)

vs. ) CASE NO. 93-5855BID

) DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a formal hearing in the above- styled case on October 28, 1993, in Tallahassee, Florida.

APPEARANCES

For Petitioner: James W. Anderson, Esquire

Post Office Drawer 870 Tallahassee, Florida 32302

For Respondent: Charles G. Gardner, Esquire

Department of Transportation

605 Suwannee Street, Mail Station #58

Tallahassee, Florida 32399-0458 STATEMENT OF THE ISSUES

Whether Petitioner timely submitted a valid bid on State Project No. 92130- 3423.

PRELIMINARY STATEMENT

By Formal Protest and Request for Hearing filed October 12, 1993, American Asphalt, Inc., Petitioner, challenges the intended award of the contract for State Project No. 92130-3423 to Hubbard Construction Company, the second low bidder on this project. American Asphalt, Inc. was the apparent low bidder. As grounds therefor it is alleged that Petitioner's bid was rejected on a minor technical error which could be waived by the Department.

At the hearing Petitioner called three witnesses, Respondent called one witness and ten exhibits were admitted into evidence. There is no real dispute regarding the operative facts here involved. Accordingly, proposed findings submitted by the parties are accepted unless rejected or modified in the Appendix hereto. Having fully considered all evidence presented I submit the following.

FINDINGS OF FACT

1. American Asphalt, Inc., a bidder fully qualified to bid on this project, did not include a printed hard copy (paper copy) along with its bid diskettes when it timely submitted its bid on State Project No. 92130-3423 before 10:30 a.m. on July 28, 1993. (Prehearing Stipulation)

   
   

2. The bid blank included with this bid (Exhibit R8) showed on the front of the document the total amount of the bid as $2,526,335.16 which is

   $201,662.70 below the next lowest bid. However, the various items to be included in the bid which totalled the amount shown on the front were left blank on Exhibit R8.

   
   

3. A hard copy run from the bid diskette included with the bid package was filed with the Department at 10:38 a.m. on July 28, 1993, eight minutes after the deadline for bid submissions, and a copy was admitted into evidence as Exhibit P1. The total of the items listed on Exhibit P1 and on the diskette is

   $2,526,335.16, the same as shown on the front page of Exhibit R8 timely submitted with the bid.

   
   

4. In October 1988, the Department instituted Contract Electronic Bidding (CEB) where the Department supplies bid proposal forms and a computer diskette designed to operate on IBM personal computers or IBM compatible computers. The only entries into the CEB program by the bidder that are permitted are the company name, vendor number, base codes, reason code, addendum number, and the unit or lump sum prices for items that must be bid in order to produce an official bid item list (Exhibit R2 Section 2-2).

   
   

5. The CEB program is intended to simplify the bidding process for both the Department and bidder. Changes made in unit prices while using this program are immediately reflected in the overall bid.

   
   

6. Diskette Bidding Instructions (Exhibit R6) was received by Petitioner with its bid package. Item 1 under instructions for submission of computer generated bids provides:

   
   

   1. The printed hard copy returned form (sic) contractor is the only acceptable bid and must be accompanied by the diskette from which it was printed.

      
      

7. Supplemental Specifications (Exhibit R4) which accompanied the standard bid specifications submitted with the bid package provides in pertinent part:

   
   

   The computer-generated bid item sheets that are submitted must be printed from the diskette that is returned. When a diskette other than the one furnished by the Department is utilized to generate the official bid, the diskette submitted must have a label attached indicating the Contractor's Name, Vendor Number, Letting Date, Revision Date (if applicable) and the State Project Number.

8. When a bid is submitted with hard copy but without a diskette or a diskette unreadable or containing a virus, the Department prepares a diskette from the hard copy which can be entered into the Department's mainframe computer.

   
   

9. Last minute changes to a bid may be made by the bidder on the hard copy by interlining or whiting out the changed figure and writing in the new figure which must be initialled by the bidder. When such an altered bid is received, both of the Department's first and second checkers of the bid initial the change.

   
   

10. Because the bid submitted by Petitioner did not contain a completed hard copy at the time specified for bid opening the Technical Review Committee voted unanimously and the Contract Awards Committee voted two to one to recommend the apparent low bid submitted by American Asphalt, Inc. be declared irregular for failure to turn in a completed computer generated bid item sheet with their bid package; and that the bid be awarded to the next lowest bidder (Exhibit R9 and R10).

    
    

11. Item 3-1 of the standard bid specification (Exhibit R3) provides in pertinent part:

    
    

    Until the actual award of the contract, however, the right will be reserved to reject any and all proposals and to waive technical errors as may be deemed best for the interest of the State.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

13. The prime issue in these proceedings is whether the omission of the hard copy of the bid tabulation in the bid package at the time of bid opening is a technical error which can be waived by the Department. The evidence is clear that the hard copy of the bid was not included in the bid package by Petitioner at the time of the bid opening, but was presented to the Department some eight minutes after the bid opening.

    
    

14. From the evidence presented it is also clear that the hard copy of the bid is the official bid rather than the diskette from which the hard copy is run. The hard copy can be changed by the bidder immediately prior to the bid opening, if desired, and when initialled by the bidder this becomes the official bid.

    
    

15. It is also clear that under the circumstances here involved Petitioner gained no competitive advantage by the late submission of its bid. However, the hard copy is the bid and, under the circumstances, the bid was not timely submitted. This returns us to the question whether this is a technical error that can be waived.

    
    

16. The bid specification was very specific about the deadline for submitting competitive bids for this project. If one minute late can be considered a technical error that can be waived, why not four, five, ten, fifteen, or even sixty minutes?

17. The standard for the Hearing Officer to follow in resolving bid disputes as stated by the Florida Supreme Court in Department of Transportation

    v. Grove-Watkins Constructors, 530 So2d 912, 914 (Fla. 1988), is that "the Hearing Officer's sole responsibility is to ascertain whether the agency acted fraudulently, arbitrarily, illegally, or dishonestly." Further, an agency's decision based upon an honest exercise of its authority and responsibility "cannot be overturned absent a finding of illegality, fraud, oppression, or misconduct".

    
    

18. In Overstreet Paving Company v. Department of Transportation, 17 FLW D2323 (Fla. 1st DCA 1992) the court accepted as correct the Department's argument that:

    
    

    [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.

    
    

19. Here the low bidder submitted a bid that was not complete by reason of the omission of the hard copy of the bid document. Although this bid was some

    $200,000.00 lower than the next low bid the question remains as to whether this is a technical error that can be waived. In resolving this question the comments of the court in International Properties, Inc. v. State Department of HRS, 17 FLWD 2030, 2033 (Fla. 3rd DCA 1992), have been considered that:

    
    

    There is a very strong public interest in favor of saving tax dollars in awarding public contracts. There is no public interest, much less a substantial public interest, in disqualifying low bidders for technical deficiencies in form, where the low bidder did not derive any unfair competitive

    advantage by reason of the technical omission.

    
    

20. Here the Diskette Bidding Instructions (Exhibit 6) which was forwarded to all bidders by the Department, advises all bidders that the printed hard copy is the only "acceptable" bid. Standard specifications Section 2-2 provides:

    
    

    Only computer generated bid item sheets printed from the CEB program diskette, furnished by the Department, will be accepted for the official bid.

    
    

    This provision was deleted by supplemental specifications (Exhibit R4) which provides:

    
    

    (b) The eighth paragraph is deleted and the following is substituted:

    The diskette furnished by the Department or a copy thereof which is used to generate the official bid shall be returned with the proposal. (Emphasis added)

21. Although the language is perhaps less clear in the amended Section 2-2 of the Standard Specification than in the original Section 2-2, the amended Section 2-2 clearly indicates the hard copy remains the official bid and must be included in the bid submitted.

    
    

22. Failure to timely submit the bid cannot be considered to be a technical error. The hard copy is the bid. This can be changed only by the bidder who must initial any change made. On the other hand it is possible, although highly unlikely, that the diskette bid prices can be changed by anyone with access to the diskette and an IBM compatible computer and no one could thereafter prove what the intended bid was before the change.

    
    

23. From the foregoing, it is concluded that the bid submitted by American Asphalt, Inc. on State Project No. 92130-3423 was irregular in that it did not include the "official" bid at the time set for bid opening, that this is not a technical error and American Asphalt's bid must be rejected.

RECOMMENDATION

Based on the foregoing, it is, hereby, RECOMMENDED:

That a final order be entered rejecting American Asphalt, Inc.'s challenge to the award of State Project No. 92130-3423 to Hubbard Construction Company.

DONE AND RECOMMENDED this 2nd day of December, 1993, in Tallahassee, Leon County, Florida.

K. N. AYERS Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904)488-9675

Filed with the Clerk of the Division of Administrative Hearings this 2nd day of December, 1993.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-5855BID

Petitioner's proposed findings are accepted except:

15. Rejected. See Hearing Officer Conclusion of Law #20.-21.

17. Rejected. See Hearing Officer Conclusion of Law #22.

Respondent's proposed findings are accepted.

COPIES FURNISHED:

Charles G. Gardner Assistant General Counsel

Department of Transportation 605 Suwannee Street

Tallahassee, Florida 32399-0450

James W. Anderson, Esquire SAVLOV & ANDERSON, P.A.

Post Office Drawer 870 Tallahassee, Florida 32302

Ben G. Watts, Secretary

Attn: Eleanor F. Turner, Mail Station #58 Department of Transportation

Haydon Burns Building 605 Suwannee Street

Tallahassee, Florida 32399-0458

Thornton J. Williams, General Counsel Department of Transportation

562 Haydon Burns Building 605 Suwannee Street

Tallahassee, Florida 32399-0458

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at 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.

Docket for Case No: 93-005855BID

Orders for Case No: 93-005855BID