STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ALL SEASONS LANDSCAPE )

CONTRACTORS, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 96-3668BID

) DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

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. Cassidy, 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 STATEMENT OF THE ISSUE

Whether All Seasons Landscape Contractors, Inc., should be awarded Florida Department of Transportation Contract Number 7578 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 reject all bids for District VII Contract Number E-7578. All Seasons was the third lowest bidder on Contract Number E-7578.

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). Both the low bidder and the second low bidder on Contract Number 7578 were notified

of Petitioner's protest. Neither the low bidder nor the second low bidder participated in the proceeding or protested DOT's decision.

Prior to the hearing, All Seasons, 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, and DOT agreed to hear the case involving Contract Number E-7578 together with a case involving a different contract 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.

After the hearing Petitioner, All Seasons, and Respondent, DOT, submitted proposed recommended orders on October 28, 1996.

FINDINGS OF FACT

1. Invitation to Bid (ITB) DOT Contract Number 7578 involves the mowing of various state roads in Citrus County, Florida. Citrus County is in District Seven of DOT.

   
   

2. The ITB requires mowing, edging, sweeping and litter removal along state roads in Citrus County.

   
   

3. The Petitioner, All Seasons is the current contractor performing the mowing services which are the subject of this protest. However, the ITB called for expansion of those services.

   
   

4. The mowing contract had to be relet because All Seasons, opted not to renew its current contract because it felt that it was not making enough of a profit.

   
   

5. The budget amount for the Contract Number 7578 protest was $180,000. The budget amount is the amount of money DOT has preapproved to spend for the contract. It is not the estimated amount DOT projects a contractor can perform the mowing contract for. The estimated amount is secret, but is generally close to the budgeted amount.

   
   

6. Four bids were submitted for the mowing contract. The four bids were:

   
   

   Imperial Cabinets	$ 70,201.05
   Horticultural Industries	$ 90,845.58
   All Seasons	$171,233.95
   Mark Dunning Industries	$181,119.61

   
   

7. In this instance, there was a large discrepancy among the bids on contract E-7578. The two lowest bidders were Imperial Cabinets and Horticultural Industries and were well below he budgeted amount. These two low bids were closer in proximity as to dollar amounts to each other and All Seasons and MDI's bids were closer in proximity to each other.

   
   

8. The technical review committee (TRC) analyzed the bids and discussed whether or not the two lowest bidders were able to perform the contract. The TRC was concerned about whether the lowest bidder could perform the work required in the ITB at the price it bid. The TRC asked for information on the two lowest bidders from other districts. It did not receive any useful

   information. DOT did not inquire of the two low bidders. 1/ The TRC also consulted with DOT staff on the lowest bidder's prices. The staff thought the prices were low but could not state that the contract could not be performed the amounts which were bid. However, the TRC recommended rejection of all the bids to the awards committee. The TRC's recommendation was based on the speculation that the low bidders did not understand the scope of the mowing contract and that lack of understanding resulted in the bid prices of the two lowest bidders. However, there was nothing unique or confusing contained within the specifications of the ITB which would lead to the conclusion that a reasonable person could not understand.

   
   

9. There is no way, just by looking at the bid proposal, to tell whether or not either firm could perform the contract at the prices. Additionally, there was no way to determine from the face of either firms bid if they did or did not understand the contract.

   
   

10. In short, there was no factual basis for the TRC to find the low bids non-responsive and to recommend rejection of all the bids.

    
    

11. The awards committee followed the recommendation and rejected all the bids. The awards committee utilized the same speculation the TRC had used its decision is as faulty.

    
    

12. In this case, Petitioner relied on the same "evidence" as DOT regarding the inability of the two low bidders to perform the contract in order to demonstrate that the two low bidders were non-responsive. The evidence simply does not support a finding of non-responsiveness. Petitioner being the third place bidder has no substantive interest in this proceeding since it could not be awarded the mowing contract. Therefore, the bid protest should be dismissed.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

14. The contract at issue in this matter was let by DOT as an invitation to bid.

    
    

15. 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.

    
    

16. 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. Robert J. Au and Son, 354 So. 2d 446, 449 (1st DCA 1978). An agency has wide discretion in making such an award. However, 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. Department of Transportation v. Groves-Watkins Constructors, 530 So. 2d 912, 914 (Fla. 1988).

17. All Seasons must prove that DOT acted fraudulently, arbitrarily, illegally, or dishonestly. Section 120.57(3)(f), Florida Statutes. Department of Transportation v. Groves-Watkins Constructors, 530 So. 2d 912, 914 (Fla. 1989).

    
    

18. To be arbitrary, DOT's actions would have to have been taken without fact or logic. Capelletti v. Department of General Sciences, 432 So. 2d 1359 (Fla. 1st DCA 1983). To be capricious, DOT would have been done without thought or reason. Dravo Basic Materials Co., Inc. v. Department of Transportation, 602 So. 2d 632 (Fla. 2d DCA 1992).

    
    

19. In the instant case, while DOT maintained that it had no factual or legal basis to reject the two lowest bids submitted for the referenced project, it nevertheless rejected these two bids along with the other valid bids submitted for the project. This decision was based on purely speculative reasons. It therefore, had no basis in fact to reject the bids.

    
    

20. However, the Petitioner did not present any evidence beyond DOT's speculation to demonstrate the two low bidders were not responsive. The evidence is just as speculative as to responsiveness or the lack thereof. The evidence did not demonstrate that the first or second low bids were non- responsive. Petitioner was third. Therefore, Petitioner has no standing to contest DOT's decision. Preston Carroll Co. v. Florida Keys Aqueduct Authority, 400 So. 2d 525, (Fla. 3d DCA 1981).

RECOMMENDATION

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

That the contractors protest bid for Contract Number E-7578 be dismissed.

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

DIANE CLEAVINGER

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 27th day of November, 1996.

ENDNOTE

1/ There is nothing in the bid law which prevents an agency to make direct inquiry on questions raised by a bid. As DOT did in Contract Number E-7584, the case hearing jointly with this case. However, the inquiry may not result in a material change in the bid.

COPIES FURNISHED:

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

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: 96-003668BID

Orders for Case No: 96-003668BID