STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ALL SEASONS LANDSCAPE )

CONTRACTORS, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 96-3667BID

) DEPARTMENT OF TRANSPORTATION, )

)

Respondent, )

and )

)

MARK DUNNING INDUSTRIES, )

)

Intervenor. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on September 17, 1996, in Tallahassee, Florida, before the Division of Administrative Hearings, by its designated Administrative Law Judge, Diane Cleavinger.

APPEARANCES

For Petitioner: Brant L. Hargrove, Esquire

1026 East Park Avenue Tallahassee, Florida 32301

Thomas J. Cassedy, III, Esquire

303 Magnolia Avenue

Panama City, Florida 32401

For Respondent: Andrea Smart, Esquire

Department of Transportation

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399-0458

For Intervenor: John Radey, Esquire

Radey, Hinkle, Thomas

and McArthur, P.A.

101 North Monroe Street Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

Whether All Seasons Landscape Contractors, Inc., should be awarded Department of Transportation Contract Number 7584 as the lowest and best bid.

PRELIMINARY STATEMENT

On July 8, 1996, Petitioner, All Seasons Landscaping Contractors, Inc. (All Seasons) filed a timely notice of protest and a protest bond concerning the decision of Respondent, the Department of Transportation (DOT) to award District VII Contract Number E-7584 to Intervenor, Mark Dunning Industries (MDI). MDI was the first low responsive bidder. All Seasons was the second low bidder on District contract E-7584, however, All Seasons was deemed non- responsive for failure to submit an equipment list.

On July 18, 1996, All Seasons filed a timely notice of protest on the proposed contract award with DOT and requested a formal administrative hearing.

The case was forwarded to the Division of Administrative Hearings (DOAH).

On August 23, 1996, Mark Dunning Industries (MDI) petitioned to intervene in Case Number 96-3668BID. The Petition to Intervene was granted.

Prior to the hearing, All Seasons, MDI and DOT entered into a Joint Prehearing Stipulation Statement wherein they stipulated to the admissibility of eight exhibits, the existence of certain facts, and to certain legal issues.

Further, All Seasons, MDI and the Department agreed to hear the case involving Contract Number E-7584 together with a case involving Contract Number E-7578 since the two cases involved the same potential witnesses.

At the hearing, All Seasons called four witnesses to testify. DOT called one witness to testify. Intervenor, MDI, offered no testimony.

After the hearing Petitioner, All Seasons, and Respondent, DOT, submitted proposed recommended orders on October 28, 1996. MDI did not submit a proposed recommended order.

FINDINGS OF FACT

1. Invitation to Bid (ITB) for DOT Contract Number E- 7584, involves the mechanical sweeping of state roadways within District Seven of DOT. District Seven is headquartered in Tampa, Florida.

   
   

2. The budget amount for the sweeping project was

   $194,500.00. There were three bids submitted for the work contemplated by this contract. The bidders and amounts are:

   
   

   All Seasons Landscape	$155,320.10
   Mark Dunning Industries	$187,719.68
   Sweeping Corporation	$191,864.03

   
   

   All bidders, submitted bids that were under the budget amount. Petitioner's bid was the lowest bid submitted.

   
   

3. The contract specifications for this project provide in pertinent part:

   
   

   M110-31-6 EQUIPMENT

   The mechanical sweeper shall have a capacity of at least three (3) cubic yards and shall be

   equipped with one or more brooms to loosen dirt and click it up into the sweeper. The swept material is then gathered onto the elevators for transport to the self contained storage hoppers for eventual rejection at selected disposal locations. A mechanic unit equipped with self elevation and self unloading hoppers for direct discharge into the trucks is also acceptable. The mechanical sweeper shall be equipped with the required safety devices as listed under Section M110-31 of the Special Provisions.

   
   

   The following sweepers are not considered mechanical sweepers for this specific contract.

   1. Vacuum Sweepers

      The vacuum sweeper uses brooms to loosen the dirt in the road and a vacuum to carry the dirt into the collection and storage chamber or container. Vacuum sweepers do not require mechanical elevators to pick up and load into the hoppers. Therefore, it DOES NOT meet the

      
      

      instead

      specified requirements.

   2. Regenerative Sweepers

      Regenerative sweepers that use forced air

      
      

      of a broom to loosen dirt on the road and employ the vacuum principle to collect the dust loosened by the blowing air and broom. This sweeper DOES NOT meet the requirements.

      
      

      The Contractor must have proof of ownership, or a signed lease for the duration of the contract for equipment suitable for meeting the

      requirements

      of this contract. A list of equipment to be used must be enclosed with the Contractor's bid.

      Where

      
      

      new equipment was purchased, the Contractor shall provide a signed quotation from an equipment dealer with a guaranteed delivery date in order to ensure that the work can begin on time.

      
      

      A sufficient supply of back-up equipment must be readily available by the Contractor by either lease or purchase to ensure timely and continuous fulfillment of this contract. In the event that an accident occurs involving the Contractor's equipment and another vehicle, other than the Contractor's, while the equipment is being used to accomplish authorized work on this contract, no relief in responsibility for work performance shall be granted to the Contractor.

      
      

4. The above specification was specifically drafted by DOT to ensure a certain type of sweeping equipment be used by the contractor. DOT had problems with the equipment used under other sweeping contracts.

   
   

5. The specifications for the sweeping contract required an equipment list to be submitted with the bid. The list was not required for other equipment. The requirement of the list was not confusing and apparent upon reading the specification.

   
   

6. The Petitioner submitted a bid without including an equipment list. Intervenor submitted an equipment list. The third place bidder for the project also did not submit an equipment list with its bid. However, the fact that two

   out of three bidders failed to submit an equipment list does not lead to the conclusion that the specifications were not clear or confusing.

   
   

7. After reviewing the bids, DOT determined that Petitioner's bid was non-responsive for failing to include an equipment list.

   
   

8. The equipment list submitted by the Intervenor with its bid listed two pieces of equipment.

   
   

9. DOT could not tell from this submitted list whether or not the equipment so listed met the specifications for the project. DOT procured from MDI an equipment brochure from the contractor as supplemental information to the submitted equipment list.

   
   

10. This equipment brochure was received by DOT. The brochure demonstrated the equipment met the specification. The brochure did not materially alter the bid.

11. DOT did not attempt to verify with the Petitioner what type of equipment it was currently using on DOT projects nor did DOT attempt to verify what type of equipment the Petitioner had available to use on this project. DOT could not allow the late submission of an equipment list since such a procedure would materially alter the bids after they were opened.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over this subject matter and the parties to this action pursuant to Section 120.57(1), Florida Statutes.

    
    

13. Section 287.057(1), Florida Statutes, provides in pertinent part that:

    
    

    The contract shall be awarded with reasonable promptness by written notice to the qualified and responsive bidder who submits the lowest responsive bid.

    
    

14. There is a general and fundamental obligation imposed by law upon DOT to award a competitively let bid to the responsible bidder who submits the lowest responsive bid. See Wood Hopkins Contracting Co. v. Roger J. Au and Son, 354 So. 2d 446, 449 (lst DCA 1978). The agency has wide discretion in making such an award. Department of Transportation v. Groves-Watkins Constructors, 530 So. 2d 912, 914 (Fla. 1988).

    
    

15. In a competitive bidding situation that DOT must only award a low bid to the responsible bidder who submits it, but it is arbitrary for DOT to refuse to waive a minor irregularity in a bid. Hubbard Construction Co. v. Department of Transportation, 642 So. 2d 1192 (1st DCA 1994).

    
    

16. However, the agency does not have unbridled discretion in its decision to award a bid.

    
    

17. DOT's decision and discretion in this matter must be driven and be based upon fact and be implemented in such a way so that the purpose of competitive bidding will not be subverted Groves-Watkins, supra.

18. The test for measuring whether a deviation in a bid is sufficiently material to destroy its competitive character is whether the variation affects the amount of the bid by giving the bidder an advantage or benefit not enjoyed by the other bidders or might affect the fairness or integrity of the competitive bidding process. Harry Pepper and Associates v. City of Cape Coral, 352 So. 2d 1190, 1193 (2nd DCA 1978). The definition is the reason bids cannot be materially altered or added to after the bids are opened.

    
    

19. All Seasons must prove that DOT acted fraudulently, arbitrarily, illegally, or dishonestly. Section 120.57(3)(f), Florida Statutes. Groves-Watkins, supra.

    
    

20. Indeed, when a required document is a mere technicality, it is imprudent to reject an otherwise proper bid because, as noted by the case below:

    
    

    There is a very strong public interest in favor of saving tax dollars in awarding public contract. There is no public interest, much less a substantial public interest, in disqual- ifying low bidders for technical deficiencies

    in form, where the low bidder did not derive any unfair competitive advantage by reason of the technical omission.

    
    

    See Overstreet Paving v. Department of Transportation, 608 So. 2d 851, 853 (2nd DCA 1992) citing Intercontinental Properties, Inc. v. State Dept. of Health and Rehabilitative Services, 606 So. 2d 380, 396 (3d DCA 1992).

    
    

21. In this case, Petitioner did not establish that DOT acted arbitrarily, dishonestly, illegally, or fraudulently in finding. All Seasons' bid was non- responsive. The submission of an equipment list was important to DOT because of earlier problems with the old contract. Additionally, the list could not be added after the bids were opened since such an addition would materially alter Petitioner's bid.

RECOMMENDATION

Based upon the foregoing findings of fact and the conclusions of law, it is,

RECOMMENDED:

That the protest of ITB E-7584 be dismissed.

DONE and ENTERED this 27th day of November, 1996, in Tallahassee, Leon County, Florida.

3060

9675

Hearings 1996.

COPIES FURNISHED:

_

DIANE CLEAVINGER

Administrative Law Judge Division of Administrative

Hearings

The DeSoto Building 1230 Apalachee Parkway

Tallahassee, Florida 32399-

(904) 488-9675 SUNCOM 278-

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative

this 27th day of November,

Andrea Smart, Esquire Department of Transportation

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399-0458

Brant L. Hargrove, Esquire 1026 East Park Avenue Tallahassee, Florida 32301

Thomas J. Cassidy, III, Esquire

303 Magnolia Avenue

Panama City, Florida 32401

John Radey, Esquire

Radey, Hinkle, Thomas, et al.

101 North Monroe Street Tallahassee, Florida 32301

Ben G. Watts, Secretary Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399-0450

Thornton J. Williams, Esquire Department of Transportation

562 Haydon Burns Building Tallahassee, Florida 32399-0450

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 96-003667BID

Orders for Case No: 96-003667BID