STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SIEG & AMBACHTSHEER, INC., )

)

Petitioner, )

)

vs. ) Case No. 98-2420BID

) DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned Administrative Law Judge of the Division of Administrative Hearings, on June 11, 1998, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Peter Ambachtsheer, President

Sieg & Ambachtsheer, Inc. Post Office Box 609

Orange City, Florida 32763

For Respondent: Brian F. McGrail, Esquire

Department of Transportation

Haydon Burns Building, Mail Station 58 605 Suwannee Street

Tallahassee, Florida 32399-0458 STATEMENT OF THE ISSUE

The issue presented is whether Petitioner's bid should be rejected as non-responsive.

PRELIMINARY STATEMENT

Petitioner and others submitted bids in response to an invitation to bid issued by the Department. After the Department

rejected Petitioner's bid as non-responsive, Petitioner timely requested an evidentiary hearing on that determination. This cause was thereafter transferred to the Division of Administrative Hearings to conduct the evidentiary proceeding.

Petitioner presented the testimony of Bill Rosenbaum, Victoria Lane, and Peter Ambachtscheer. The Department presented the testimony of Lizz Holmes and Paul Lampley. Additionally, Joint Exhibits numbered 1-13, 17, and 18; Petitioner's Exhibits numbered 14-16; and the Department's Exhibit numbered 1 were admitted in evidence.

Both parties submitted post hearing proposed recommended orders. Those documents have been considered in the entry of this Recommended Order.

FINDINGS OF FACT

1. The Department issued an invitation to bid on State Project No. 93060-3256 for repair and painting of the Flagler Memorial Bridge in Palm Beach County. Since the bridge had tested positive for lead, the advertisement for the project was a standard format utilized by the Department in its District IV for lead-based paint projects requiring QP2 certification.

2. QP2 certification is issued by the Steel Structures Painting Council. The certification demonstrates to the Department that the contractor or subcontractor performing the abatement of lead-based paint on a project has been properly trained to deal with hazardous materials affecting workers and

   will take the necessary precautions to protect the environment. Utilizing contractors with QP2 certification limits the Department's liability. The certification also ensures that the

   contractor is familiar with federal Occupational Safety and Health Administration standards.

3. Petitioner is a closely-held corporation. Peter Ambachtsheer is the president and project engineer for the corporation. His sister, Victoria Lane, is the vice president in charge of administration.

4. The advertisement for the project specified that attendance at the pre-bid conference was required in order for any contractor to submit a bid on the project. The mandatory pre-bid conference was held on January 30, 1998, at the District IV office in Fort Lauderdale. Bill Rosenbaum attended the pre- bid conference on behalf of Petitioner.

5. An agenda listing the topics to be discussed and the speakers who would address each topic was distributed to the persons attending the pre-bid conference. The agenda advised that Paul Lampley would discuss "QP2 Certification--Submittal with bid proposal."

6. During his remarks, Lampley specifically told those in attendance that a QP2, Category A, certificate must be submitted with any bid. He read to the persons in attendance the section of the Technical Special Provisions requiring that the QP2, Category A, certificate be submitted with the bid and the provision in the project plans requiring the certificate to be submitted with the bid.

7. Ambachtsheer reviewed the Technical Special Provisions

   and the plans for the project when Petitioner received the bid package after the pre-bid conference. He understood that the portion of the work involving the lead-based paint must be performed by a contractor or subcontractor holding the required QP2, Category A, certification. Since Petitioner is not so certified, Ambachtsheer contacted Len Hazen Painters, Inc., a company which he knew was certified.

8. Ambachtsheer obtained a quote from Hazen for that portion of the project requiring QP2 certification. He included that amount as part of Petitioner's bid. He told Hazen to fax a copy of its certification to Petitioner so it could be submitted to the Department with Petitioner's bid. Hazen did so, and Petitioner received that certificate before it submitted its bid.

9. Ambachtsheer completed his calculations for the bid and gave his worksheets to Victoria Lane to use in filling in the bid submittal portion of the bid documents. He then left the office to supervise certain work that the company was performing. He did not tell her that the QP2 certificate must be submitted with the bid, and she did not look at the Technical Special Provisions or the project plans since she considers those documents beyond her expertise.

10. Lane prepared the bid submittal sheets using Ambachtsheer's calculations. She submitted the bid so that it was timely received by the Department. She did not include Hazen's QP2 certificate with the bid she submitted on behalf of

    Petitioner.

    
    

11. The Department received Petitioner's bid prior to the deadline. The Department opened the bids it received on Friday, March 13, 1998. Petitioner was the apparent low bidder.

12. When Petitioner learned that it was the apparent low bidder, Ambachtsheer asked to see the bid so he could plan the work on the project. He saw that Hazen's certificate was still in the file and had not been included with Petitioner's bid. He caused the certificate to be faxed to the Department immediately, which occurred late in the morning on Monday, March 16.

13. Upon the next level of review, the Department rejected Petitioner's bid as non-responsive since it failed to include the required QP2 certificate.

14. It is the Department's practice and policy to require that lead-based paint work be performed by a QP2, Category A, certified contractor. The submission of evidence of certification is a material condition of the bid. Petitioner's bid failed to include the required certification.

15. There is, however, some variation among the Department's Districts as to when the required certification should be submitted. That variation did not confuse Petitioner.

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction over the parties hereto and the subject matter hereof. Sections 120.569 and 120.57(1), Florida Statutes.

17. Section 120.57(3)(f), Florida Statutes, provides that in a competitive-procurement protest, no submissions made after the bid opening amending or supplementing the bid shall be considered. That Section further provides that the burden of proof rests upon the party challenging the proposed agency

    action. In this cause, the proposed agency action is the Department's preliminary decision to reject Petitioner's bid as non-responsive.

18. Petitioner agrees that the project in question requires some of the work to be performed by a QP2 contractor. Petitioner also agrees that evidence of QP2 certification was required to be submitted to the Department. Petitioner asserts, however, that the requirement that the certificate be submitted with the bid was not made clear by the Department. Petitioner's position is without merit.

19. Petitioner was required to attend the pre-bid conference in order to submit a bit on the project, and Petitioner did so through its representative Rosenbaum. At the pre-bid conference, the agenda advised that the certificate must be submitted with the bid, and one of the speakers read that requirement to the attendees from the bid documents.

20. The bid package also advised potential bidders of the requirement in both the Technical Special Provisions and in the project plans. Petitioner read and understood that requirement through its representative Ambachtsheer who took the necessary steps to obtain a copy of Hazen's certificate. Ambachtsheer did not tell Lane about the requirement when she filled in the price sheets and submitted them to the Department as Petitioner's bid.

21. Therefore, Petitioner had knowledge of the requirement, and its argument that the Department did not communicate the

    requirement sufficiently is not persuasive. It was not the Department's failure to communicate the requirement to potential bidders which caused Petitioner's mistake; rather, it was Petitioner's own office procedures and Petitioner's employees' failure to communicate the requirement to each other.

22. Similarly unpersuasive are Petitioner's arguments that the requirement of submitting the certificate with the bid should have been printed in bold type or that the requirement should have been specified on the bidder's checklist. The requirement was sufficiently conveyed so that Petitioner had actual knowledge. Further, Petitioner's argument that the Department caused confusion because the Department's various districts require submission of the certificate at varying times is without merit because Petitioner was not confused by that variation.

23. Petitioner's final argument is that the Department specifically should have advised potential bidders that their bids would be rejected if they did not include the required certification. There is no showing that the Department's failure to do so caused Petitioner's mistake. What the Department did instead, however, was advise Petitioner and other potential bidders what was required for their bids to be accepted.

24. Petitioner's bid did not comply with the Department's repeated advice as to what was required, and the Department correctly rejected Petitioner's bid as non-responsive. Petitioner has not met its burden of proving that the

    Department's rejection of Petitioner's bid was contrary to the Department's governing statutes, the Department's rules or policies, or the bid specifications. Accordingly, the Department has not acted clearly erroneously, contrary to competition, arbitrarily, or capriciously in rejecting Petitioner's bid.

25. The Department's argument that Petitioner lacks standing to initiate this proceeding because it failed to prove its bid was responsive requires no discussion.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that a final order be entered finding Petitioner's bid to be non-responsive and rejecting Petitioner's bid.

DONE AND ENTERED this 18th day of August, 1998, in Tallahassee, Leon County, Florida.

LINDA M. RIGOT

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 18th day of August, 1998.

COPIES FURNISHED:

Peter Ambachtsheer, President Sieg & Ambachtsheer, Inc.

Post Office Box 609

Orange City, Florida 32763

Brian F. McGrail, Esquire Department of Transportation

Haydon Burns Building, Mail Station 58 605 Suwannee Street

Tallahassee, Florida 32399-0458

Pamela Leslie, General Counsel Department of Transportation

Haydon Burns Building, Mail Station 58 605 Suwannee Street

Tallahassee, Florida 32399-0450

Thomas F. Barry

Department of Transportation

Haydon Burns Building, Mail Station 58 605 Suwannee Street

Tallahassee, Florida 32399-0450 ATTN: Diedre Grubbs

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 10 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: 98-002420BID

Orders for Case No: 98-002420BID