STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

QUINN CONSTRUCTION, INC., )

)

Petitioner, )

)

vs. )

)

DEPARTMENT OF TRANSPORTATION, ) CASE NO. 95-0564BID

)

Respondent. )

and )

) M & J CONSTRUCTION COMPANY OF ) PINELLAS COUNTY, INC., )

)

Intervenors. )

)

RECOMMENDED ORDER

On March 17, 1995, a formal administrative hearing was held in this case.

It was held before J. Lawrence Johnston, Hearing Officer, Division of Administrative Hearings by televideo. (The hearing officer and some of the participants were in a specially-equipped hearing room in Tallahassee, and the other hearing participants were in a specially-equipped hearing room in Tampa, Florida. The two hearing rooms were connected by televideo.)

APPEARANCES

For Petitioner: Suzanne Quinn, Esquire

1321 77th Street East Palmetto, Florida 34221

For Respondent: Thomas H. Duffy, Esquire

Department of Transportation 605 Suwannee Street

Tallahassee, Florida 32399-0450

For Intervenor: Joseph G. Thresher, Esquire

One Mack Center

501 East Kennedy Bouelvard, Suite 725 Tampa, Florida 33602

STATEMENT OF THE ISSUE

The issue in this case is whether the Respondent, the Department of Transportation (DOT), arbitrarily refused to accept the low bid submitted by the Petitioner, Quinn Construction, Inc. (Quinn), and Bay Machine, Inc., for State Project No. 15200-3902.

PRELIMINARY STATEMENT

On February 8, 1995, the DOT referred Quinn's formal bid protest to the Division of Administrative Hearings (DOAH) for proceedings under Section 120.53(5)(e), Fla. Stat. (1993). Included in the referral was a request by the successful next lowest bidder, M & J Construction Company of Pinellas County, Inc. (M & J), to intervene.

On February 9, 1995, final hearing was scheduled for February 23, 1995, in Tallahassee, Florida, in accordance with the statutory bid protest procedures.

On February 16, 1995, M & J filed an answer and a motion to dismiss Quinn's bid protest for lack of jurisdiction, together with a motion to change the date of the final hearing. On February 17, 1995, Quinn filed a motion to change the venue of the final hearing to Pinellas County, and the DOT filed a response in opposition to a change of venue.

The pending motions were heard by telephone on February 20, 1995. During the hearing, the parties stipulated to waive the statutory deadline for scheduling the final hearing and agreed to convert the final hearing to video and continue it to March 17, 1995. There was no ruling on M & J's motion to dismiss.

On March 16, 1995, the parties filed a unexecuted Prehearing Stipulation. No executed Prehearing Stipulation was filed, but the parties stipulated (with minor modifications) on the record of the final hearing the next day.

At the final hearing, the parties had Joint Exhibits 1 through 9 admitted in evidence. Joint Exhibit 6 was a composite consisting of 6A, 6B, 6C and 6D. Joint Exhibit 8 also was a composite exhibit consisting of the plans and specifications for both the November 15, 1994, solicitation of bids for State Project No. 15200-3902 and an earlier, July 1, 1994, solicitation of bids for essentially the same project, which was cancelled when all bids were rejected and the bid solicitation process was reinitiated. (The parties agreed that DOT would file the part of Exhibit 8 consisting of the plans for the earlier bid solicitation after the conclusion of the final hearing.)

Quinn and the DOT each called three witnesses at final hearing. M & J called no witnesses but had Intervenor Exhibits 1 through 4 admitted in evidence.

During the course of the hearing, Quinn objected to Intervenor Exhibits 1 through 3 as being irrelevant. Those exhibits pertained to M & J's contention that the Quinn bid was unresponsive because the bid bond named Quinn as the principal, while actually Quinn and Bay Machine, Inc., together, prequalified to bid and submitted the bid together. Quinn took the position that DOT did not reject the bid on that basis and that the issue was moot in this proceeding.

The Quinn objection to the admission of the evidence was overruled, but it was indicated that ruling would be reserved on the substantive issue of whether the issue was moot. At the conclusion of the evidence, Quinn moved to leave the evidentiary record open pending a ruling on the substantive issue, and the motion was denied.

At the conclusion of the hearing, the DOT ordered the expedited preparation of a transcript and agreed to expedite the filing of the missing part of Joint Exhibit 8. The parties were therefore given ten days from the filing of the transcript in which to file proposed recommended orders. The transcript was

filed on March 22, 1995, but the missing part of Exhibit 8 was not filed until April 3, 1995. As a result, the parties were given until April 13, 1995, in which to file proposed recommended orders.

M & J's proposed recommended order failed to meet the extended deadline, and M & J is not entitled to explicit rulings its proposed findings of fact. Explicit rulings on the other parties' proposed findings of fact may be found in the Appendix to Recommended Order, Case No. 95-0564BID.

The parties agreed to shorten the time for filing exceptions to this Recommended Order to ten days, including weekends and holidays, instead of the

20 days provided for in F.A.C. Rule 28-5.404.

FINDINGS OF FACT

1. On or about December 7, 1994, the Petitioner, Quinn Construction, Inc. (Quinn), submitted a $1,695,534.84 bid on behalf of Quinn and Bay Machine, Inc., in response to a November, 1994, Department of Transportation (DOT) solicitation for bids on State Project No. 15200-3902. State Project No. 15200-3902 was essentially the same project for which the DOT previously solicited bids on or about July 1, 1994. The earlier solicitation for bids was cancelled when all bids were rejected, and the bid solicitation process was reinitiated.

   
   

2. All bidders were required to furnish a bid guaranty, and the parties stipulate that any bid not accompanied by a bid guaranty would be declared nonresponsive. Attached to the Quinn/Bay Machine bid was a Bid or Proposal Bond on DOT Form 375-020-09.

   
   

3. There was only one bridge rehabilitation project for Pinellas County among the projects for which the DOT was opening bids on December 7, 1994, and the bid bond was attached to the bid proposal of Quinn and Bay Machine for State Project No. 15200-3902.

   
   

4. Utilizing the DOT form, the Quinn bid bond described the proposal being bonded as being "for constructing or otherwise improving a road(s) and/or bridge(s) or building(s) in Pinellas County; particularly known as Bayway 7918 Bridge Rehab." The part of the form calling for identification of the "Project No." was left blank. The bid bond was executed by James M. Moore as attorney- in-fact for North American Specialty Insurance Company.

   
   

5. In addition to calling for the "Project No." in DOT Bid or Proposal Bond Form 375-020-09, the DOT routinely furnishes all bidders a Bidder's Checklist which reminds bidders to use the form and to identify the project on the form by county, by the federal aid number(s), if applicable, and by the State Project Job Number. Although the Bidder's Checklist was not in the bid package received by Quinn in connection with the November, 1994, solicitation for bids, Quinn received a Bidder's Checklist for the July, 1994, solicitation for bids on the same project and for many other previous bid solicitations. In prior bid proposal submissions, including the bid proposal submitted for the same project in August, 1994, Quinn had its surety use the "Project No." to identify the project on the bid bond.

   
   

6. The attorney-in-fact for the bond company testified that the number 7918 on the bond was a typographical error. He testified that he thought 798 was the number that was supposed to be on the bond to identify the project.

7. The WPI No. for the project was 7116982. The applicable State Road number was 679. The applicable bridge number was 150049.

   
   

8. Although DOT Bid or Proposal Bond on DOT Form 375-020-09 called for identification of the "Project No.," DOT would have accepted a bid bond that identified the project by any of these numbers or by the official name of the bridge, if any.

   
   

9. The bridge in question has no official name. It was not even proven that the bridge is commonly known as the Bayway 7918 Bridge, or even as the Bayway Bridge. The bridge in question is part of the Pinellas Bayway, which is a system of roads, causeways and bridges connecting St. Petersburg and St. Petersburg Beach and several small keys in Boca Ciega Bay. There are two state roads on the Pinellas Bayway: State Road 682, which connects State Road 699 to the west on St. Petersburg Beach to Interstate 275 to the east in St. Petersburg; and State Road 679, which intersects State Road 682 and runs south through Tierra Verde into Fort DeSoto Park on Mullet Key. Both 682 and 679 have combination fixed-span and bascule (draw) bridges. The bridge in question is on 679.

   
   

10. When the DOT opened the bid of Quinn and Bay Machine, the incorrect identification of the project on the bid bond was noticed, and the question was referred to the Technical Review Committee. During its meeting on December 21, 1994, the Technical Review Committee sought the advice of its legal counsel and was advised that the bond probably would not be enforceable due to the inaccurate identification of the project to which it pertained. Based in part on the advice of counsel, the Technical Review Committee voted unanimously to recommend to the DOT Contract Awards Committee that the bid proposal be rejected as being non-responsive because of the bid bond. On December 23, 1994, the Contract Awards Committee met and voted unanimously to reject the bid proposal as being non-responsive because of the bid bond. Instead, the Committee accepted the bid proposal of M & J Construction Company of Pinellas County, Inc. (M & J).

    
    

11. It was not arbitrary for the DOT to conclude that the Quinn bid bond was, or might well have been, unenforceable due to the inaccurate identification of the project to which it pertained.

    
    

12. The DOT did not even consider whether the Quinn bid bond also may have been invalid and unenforceable because it named just Quinn as the principal, instead of both Quinn and Bay Machine, the actual entity that was prequalified to bid on the project and the actual entity bidding on the project.

    
    

13. It also was not arbitrary for the DOT to conclude that submitting an unenforceable bid bond is not a minor irregularity. If a successful bidder does not enter into a contract, the project would be delayed while it is being rebid. The delay itself would result in a monetary loss. In addition, rebidding the project would result in additional costs to the DOT.

    
    

14. Submitting an unenforceable bid bond could give a bidder the competitive advantage of feeling able to escape from having to contract and perform in accordance with a low bid, if advantageous to the bidder, without being liable under the bid bond.

    CONCLUSIONS OF LAW

    
    

15. In this case, Quinn has the burden of proving that the DOT arbitrarily rejected the low bid submitted by Quinn and Bay Machine for State Project No. 15200-3902. See Dept. of Transp. v. Groves-Watkins Constructors, 530 So. 2d 912 (Fla. 1988); Overstreet Paving Co. v. Dept of Transp., 608 So. 2d 851, 853 (Fla. 2d DCA 1992); Asphalt Pavers, Inc., v. Dept. of Transp., 602 So. 558, 561 (Fla. 1st DCA 1992).

    
    

16. In this case, the Quinn bid bond did not provide the Project Number required by DOT Form 375-020-09. Nor did the Quinn provide either the WPI number, the State Road number, or the bridge number, all of which would have been acceptable to the DOT. Worse, the Quinn bid bond provided numbers that were not the same or even similar to the Project Number or any of the other numbers that could have been used identify the project. In addition, not only is there no official bridge name, which also would have been acceptable to the DOT, the name by which the Quinn bid bond referred to the bridge by a name which is not even commonly used by locals to identify the bridge. On the facts found in this case, it is concluded: (1) it was not arbitrary for the DOT to question the enforceability of the bid bond; (2) the advice of DOT legal counsel that the bid bond probably was not enforceable was not arbitrary; and (3) it was not arbitrary for the DOT to have rejected the bid due to questions concerning the enforceability of the bid bond.

    
    

17. Irregularities in a bid proposal can be waived if they are minor or technical and if they do not give a bidder a competitive advantage. See Liberty County v. Baxter's Asphalt & Concrete, 421 So. 2d 505 (Fla. 1982); Overstreet Paving Co. v. Dept of Transp., supra; Intercontinental Properties, Inc., v. Dept. of Health, etc., 606 So. 2d 380 (Fla. 3d DCA 1992). The Overstreet opinion holds that, where the minor irregularity involves the alleged omission of a technically required document that has "no impact on competitive bidding," the protestant's burden should be to prove a prima facie case that the required document was submitted with the bid and that the prima facie case should shift the burden to the agency to prove that it was not submitted as required. Overstreet, supra at 853.

    
    

18. In this case, it was not arbitrary for the DOT to conclude that Quinn's submission of an unenforceable bid bond was not a minor irregularity that could be waived. As found, awarding a project to a bidder that submitted an unenforceable bid bond could expose the DOT to delay and monetary losses. Constrast Overstreet Paving Co. v. Dept of Transp., supra, and Asphalt Pavers, Inc., v. Dept. of Transp., supra (in both of which the issue was whether the protestant submitted required MBE documentation with the bid). (In Asphalt Pavers, DOT was unable to determine, at the time of the award, whether the required MBE documentation was submitted with the bid, but it was proven at the hearing that the required documentation was in fact submitted with the bid.) In addition, submitting an unenforceable bid bond could give a bidder the competitive advantage of feeling able to escape from having to contract and perform in accordance with a low bid, if advantageous to the bidder, without being liable under the bid bond. Contrast Asphalt Pavers, Inc., v. Dept. of Transp., supra; Overstreet Paving Co. v. Dept of Transp., supra; Intercontinental Properties, Inc., v. Dept. of Health, etc., supra.

    
    

19. In light of the preceding conclusion of law, it is not necessary to decide whether, at this point in the proceedings, the DOT decision to reject the low bid submitted by Quinn and Bay Machine also can be sustained on the ground

that the Quinn bid bond failed to name Bay Machine as one of the principals, even though the DOT has not yet considered that possible ground for rejecting the bid.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Transportation enter a final order dismissing the Petitioner's bid protest and awarding State Project No. 15200-3902 to M & J Construction Company of Pinellas County, Inc.

RECOMMENDED this 26th day of April, 1995, in Tallahassee, Florida.

J. LAWRENCE JOHNSTON 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 26th day of April, 1995.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-0564BID

To comply with the requirements of Section 120.59(2), Fla. Stat. (1993), the following rulings are made on the parties' proposed findings of fact:

Petitioner's Proposed Findings of Fact.

(It appears that the Petitioner's proposed findings of fact are found at pages 2-5 of its Proposed Findings of Fact and Conclusions of Law. For purposes of these rulings, the unnumbered paragraphs on those pages are assigned consecutive numbers.)

1. Rejected in part. (Joint Exhibit 2 refers to State Road 679, not the project, as having the "Local Name: Pinellas Bayway." Joint Exhibit 5 also only refers to State Road 679, not the project, by the name "Pinellas Bayway." Only the front covers of the technical specs refer to the "Pinellas Bayway Bridge." The other pages refer to the "Pinellas Bayway," and all of the pages also include the State Project Number.) Otherwise, accepted and incorporated to the extent not subordinate or unnecessary.

2. First sentence, accepted and incorporated to the extent not subordinate or unnecessary. Second and last sentences, rejected as not proven.

3. Rejected in part as argument and in part as not proven.

4. Last sentence accepted, but ambiguous and not legally significant, subordinate and unnecessary, whether DOT could "tie" the bid bond to the bid. Penultimate sentence, rejected in part as not proven (that Exhibit 4 "identified the project as the Pinellas Bayway"); otherwise, accepted and incorporated to the extent not subordinate or unnecessary. The rest is accepted and incorporated to the extent not subordinate or unnecessary.

5. First sentence, rejected as not proven. (The evidence was clear that the DOT form requires a state project number and that the Bidder's Checklist provided to bidders by the DOT reminds bidders to use the form and identify the project by county, federal aid number(s), if applicable, and State Project Job Number.) Second sentence, subordinate and cumulative.

6. Rejected as conclusion of law.

7. Last sentence rejected as not proven that North American identified the project or that it used the local name of the bridge. The rest is rejected as not proven because the evidence was clear that the DOT form requires a state project number and that the Bidder's Checklist provided to bidders by the DOT reminds bidders to use the form and identify the project by county, federal aid number(s), if applicable, and State Project Job Number.)

8. Accepted but subordinate and unnecessary.

9. Rejected as not proven that DOT was arbitrary. The rest is subordinate, in part cumulative and in part argument.

10. Subordinate, cumulative and argument.

11. Rejected in part as conclusion of law, in part as argument and in part as not proven.

Respondent's and Intervenor's Proposed Findings of Fact.

All of the DOT's and the Intervenor's proposed findings of fact are accepted and are incorporated to the extent not subordinate or unnecessary or argument.

COPIES FURNISHED:

Suzanne Quinn, Esquire 1321 77th Street East Palmetto, Florida 34221

Thomas H. Duffy, Esquire Department of Transportation 605 Suwannee Street

Tallahassee, Florida 32399-0450

Joseph G. Thresher, Esquire One Mack Center

501 E. Kennedy Bouelvard, Suite 725 Tampa, Florida 33602

Ben G. Watts Secretary

Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399-0450

Thornton J. Williams, Esquire General Counsel

Department of Transportation

562 Haydon Burns Building 605 Suwannee Street

Tallahassee, Florida 32399-0450

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit to the Department of Transportation written exceptions to this Recommended Order. All agencies allow each party at least ten days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions and, ordinarily, parties should consult with the agency concerning its rules on the deadline for filing exceptions to this Recommended Order. But in this case, the parties have stipulated to a period of ten days in which to submit written exceptions.

Docket for Case No: 95-000564BID

Orders for Case No: 95-000564BID