STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CONTEMPORARY CONSTRUCTION ) SOUTHEAST, INCORPORATED, )

)

Petitioner, )

)

vs. ) Case No. 98-5018BID

) DEPARTMENT OF TRANSPORTATION, )

)

Respondent, )

)

and )

) SALEEM LAWN SERVICE, INC., )

)

Intervenor. )

)

RECOMMENDED ORDER

Notice was provided and on January 13, 1999, a formal hearing was held in this case. The hearing location was the Jacksonville Regional Service Center, Building "B," Conference Room 160, 921 North Davis Street, Jacksonville, Florida. The authority for conducting the hearing is set forth in Sections

120.569 and 120.57(1), Florida Statutes. The hearing was conducted by Charles C. Adams, Administrative Law Judge.

APPEARANCES

For Petitioner: Joseph A. Lane, Esquire

Lowndes, Drosdick, Doster, Kantor and Reed, P.A.

Post Office Box 2809 Orlando, Florida 32802

For Respondent: Brian F. McGrail, Esquire

Department of Transportation Haydon Burns Building

Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399-0458

For Intervenor: Bilal Saleem, Personal Representative

Saleem Lawn Service, Inc. Post Office Box 26736 Jacksonville, Florida 32226

STATEMENT OF THE ISSUES

Was Petitioner responsive to the bid solicitation for Project E-2B59, Duval County (the project) by Respondent? Did Respondent act appropriately in rejecting all bids for the project?

PRELIMINARY STATEMENT

Petitioner filed a Notice of Protest for the project concerning Respondent's decision to reject Petitioner's bid as unresponsive in favor of Intervenor's bid as constituting the lowest responsive bid. Intervenor's bid price quotation was second lowest compared to Petitioner's lowest price quotation. The date of that Notice of Protest was September 2, 1998. Subsequently, Petitioner filed a Second Notice of Protest against the decision by Respondent to reject all bids for the project. The Second Notice of Protest was dated September 3, 1998. A Formal Notice of Protest was submitted by Petitioner to Respondent dated September 9, 1998 in relation to both notices of protest.

On November 12, 1998, Respondent requested the Chief Judge of the Division of Administrative Hearings to assign an Administrative Law Judge to conduct a hearing in accordance with

Section 120.57(3), Florida Statutes, to resolve the issues in dispute between Petitioner and Respondent.

Following the request for assignment of an Administrative Law Judge, the case was assigned and noticed for hearing before the undersigned to be conducted on December 14, 1998.

Intervenor petitioned to intervene. Time was allowed for Petitioner and Respondent to file responses to that Petition to Intervene. On December 14, 1998, an order was entered allowing intervention. On that same date an order was entered granting a continuance upon Petitioner's Unopposed Motion and rescheduling the hearing date for January 13, 1999. Intervenor came into the case in support of the preliminary decision by the Respondent to reject Petitioner's bid submission and in opposition to the Respondent's decision to reject all bids.

At hearing the parties submitted Joint Exhibits 1-9, 9.1, 10, 10.1, and 11-19, which were admitted as evidence. Petitioner called Thomas Patrick Daugherty, its Secretary and Treasurer as its only witness. Respondent called Jane E. Jones, Contract Administrator for Respondent's District Two office as its only witness. Intervenor presented the testimony of Bilal Saleem, its President, as its only witness.

A hearing transcript was filed on January 29, 1999.

Petitioner and Respondent timely filed Proposed Recommended Orders on February 8, 1999. Intervenor did not submit a Proposed

Recommended Order. The submissions by Petitioner and Respondent have been considered in preparing the Recommended Order.

FINDINGS OF FACT

1. Respondent solicited numerous firms to bid for a contract to conduct roadside mowing and litter removal under terms of the project. This included the edging of sidewalks, curbs, and gutters. The estimated cost of this project for budgetary purposes was $300,000. The project was to be completed within 365-calendar days with a renewal option. Only four firms responded to the bid solicitation notice. Petitioner and Intervenor were among those firms.

2. In particular, the bid solicitation notice informed the bidders about the DBE goals for the project wherein it stated:

   This contract has minimum DBE goals of 10% Black and/or Hispanic. The DBE Utilization Summary Form 275-020-003, Rev. 10/95 must be included with the bid submission or the bid will be declared non-responsive. In addition, all DBE Utilization Form(s) S275- 020-004, Rev. 10/95 must be completed and received by 5:00 P.M. on the third business day following the letting or the bid will be declared non-responsive.

3. In addition to other comments concerning 275-020-003, DBE Utilization Summary Form and 275-020-004, DBE Utilization Form, the bidders were provided the following instructions for completing those forms in relation to the project:

   Revised 5/96

   
   

   INSTRUCTIONS FOR COMPLETING UTILIZATION FORMS 275-020-003 and 275-020-004

   (REVISED 10/95)

   
   

   NOTE: THESE FORMS MUST BE COMPLETED IN ACCORDANCE WITH RULE CHAPTER 14-78, FLORIDA ADMINISTRATIVE CODE

   
   

   FORM 275-020-003, DBE UTILIZATION SUMMARY

   
   

   This form must have all information requested including total goal in dollars and total goal in percentage. No signatures are required. If the project has one DBE goal use one form. If the project has a split goal (i.e. 4% Black 4% Non-minority Women) use two forms, one for each goal. The completed form if not submitted with the bid, must be received by the Minority Programs Office no later than 5:00 p.m. on the third business day after the letting. Electronic transmittals (e.g. facsimiles) sent directly to the Department will not be accepted.

   FORM 275-020-004, DBE UTILIZATION FORM

   
   

   1. Complete the form indicating prime contractors, state project number and DBE name, address and phone number.

      
      

   2. Submit one form for each DBE utilized on the project. Make additional copies if necessary.

      
      

   3. The form submitted to the Department must be completed, signed by an authorized representative of the DBE and received by the Minority Programs Office by 5:00 p.m. on the third business day following the letting. Electronic transmittals (e.g. facsimiles) sent directly to the Department will not be accepted.

      
      

   4. The columns for "Item No." and "Description" shall include the same information as per the "Request to Sublet" form.

      
      

   5. The amount paid to a certified DBE supplier must be factored by 60% to attain the amount to be applied toward the DBE goal.

   6. Complete line showing "Total to DBE."

      
      

4. It can be seen that the explanation provided by Respondent in its bid solicitation notice and the instructions for completing utilization forms are in conflict in relation to the time for submitting 275-020-003, DBE Utilization Summary Form. The bid solicitation notice mandated the provision of that form with the bid submission or the bid would be declared non- responsive. Whereas, the instructions for completing that form would allow a bidder until 5:00 P.M. on the third business day after the letting for receipt of that information by the Minority Programs Office in the event that the information had not been submitted with the bid.

5. The bidders for the project were also provided with excerpts of Chapter 14-78, Florida Administrative Code, in relation to participation by socially and economically disadvantaged individuals in Department of Transportation contracts. Rule 14-78.003, Florida Administrative Code, was part of the excerpt. At 14-78.003 Subpart 2(b)3., provided to the project bidders, it states:

   For all contracts for which DBE contract goals have been established, each bidder shall meet or exceed or demonstrated it could not meet, despite its good faith efforts, the contract goal set by the department. The DBE participation information shall be submitted as outlined in 14-78.003(2)(b)3.a. and b. below. . . . Failure to satisfy information requirements shall result in contractor's bid being deemed non-responsive and the bid being rejected.

   1. The contractor's bid submission shall include the following information. . . and shall be submitted on a completed Disadvantaged Business Enterprise (DBE) Utilization Form, Form 275-020-004, Rev. 10/95 and Disadvantaged Business Enterprise (DBE) Utilization Summary Form, Form 275-020- 003, Rev. 10/95:

      
      

      1. The names, addresses, and current telephone numbers of the certified DBE firms that will participate in the contract; and

         
         

      2. A description of the work each named DBE certified firm will perform; and

         
         

      3. The dollar amount of participation by each named DBE certified firm; and

         
         

      4. Any documentation required by the contract or applicable rules as evidence of certified DBE participation; and

         
         

      5. Signature of an authorized representative of the certified DBE firm confirming the DBE utilization information; and

         
         

      6. Evidence that the DBE goal for the project has been met. If the DBE goal is not met, sufficient information must be provided to demonstrate that the contractor made good faith efforts to meet the DBE goals.

      
      

   2. In lieu of a completed Disadvantaged Business Enterprise (DBE) Utilization Summary Form, Department of Transportation Form 275- 020-003, Rev. 10/95, and a Disadvantaged Business Enterprise (DBE) Utilization Form, Department of Transportation Form 275-020- 004, Rev. 10/95, the contractor will submit a Disadvantaged Business Enterprise (DBE) Utilization Summary Form which indicates that either the contractor will achieve the DBE goal established for the project for which the bid has been submitted, or that the contractor has submitted sufficient information to demonstrate that the contractor made good faith efforts to meet

   the DBE goal as part of the bid submission. If the contractor has submitted a Disadvantaged Business Enterprise (DBE) Utilization Summary Form on which the contractor has indicated that the DBE goal will be achieved, the contractor will provide to the Minority Programs Office by 5:00 P.M. on the third business day following the bid letting day (Electronic transmissions, such as a FAX, sent directly to the Department will not be accepted):

   
   

   1. An updated Disadvantaged Business Enterprise (DBE) Utilization Summary Form listing the DBE subcontractors that will be utilized on the project to meet the DBE goal, the dollar amount of the DBE goal subcontracted to each DBE, and the total dollar amount for the DBE goal; and

      
      

   2. Disadvantaged Business Enterprise (DBE) Utilization Forms shall be completed and signed by an authorized representative of the DBE, for each DBE subcontract utilized on the project to achieve the DBE goal. Disadvantaged Business Enterprise (DBE) Utilization Forms that are not signed by an authorized representative of the DBE firm, will be rejected and will result in the bid being non-responsive.

6. The bid solicitation notice tended to coincide with Rule 14-78.003(2)(b)3.b, Florida Administrative Code, with the exception that the bid solicitation notice did not call for the submission of an updated Disadvantaged Business Enterprise (DBE) Utilization Summary Form by 5:00 P.M. on the third business day following the bid letting.

7. The Disadvantaged Business (DBE) Utilization Summary Form 275-020-003 provided to the bidders, in relation to paragraph

   6.a. states:

   1. This form must be included in the bid submission and must be completed in accordance with one of the following options:

      
      

      1. Goal achieved with the following information completed (Note: All signed DBE Utilization forms 275-020-004 must be received by the District Contracts Office, 1901 S. Marion St., Lake City, Florida 32025, no later than 5:00 p.m. on the third business day after the letting).

   
   

   Later the form states:

   
   

   NOTE: Bids shall be declared non-responsive if the DBE Utilization Summary form providing all information listed in 6.a. above, and all completed DBE Utilization forms are not received by the District Contracts Office, 1901 S. Marion St., Lake City, Florida 32025, by 5:00 P.M. on the third business day following the letting. Electronic transmittals (e.g. Faxes) sent directly to the Department will not be accepted.

   This form is internally inconsistent in that it initially states that the Disadvantaged Business Enterprise (DBE) Utilization Summary Form must be included with the bid submission and later states that the DBE Utilization Summary Form providing the information will not be declared non-responsive if received by the District Office on the third business day following the letting.

8. By contrast, consistent with the bid solicitation notice, the Disadvantaged Business Enterprise (DBE) Utilization Form 275-020-004, provided to the bidders for the project stated:

   NOTE: All DBE Utilization Forms submitted to the Department must be completed, signed by an authorized representative of the DBE and received by the District Contracts Office, 1901 S. Marion St., Lake City, Florida 32025,

   by 5:00 P.M. on the third business day following the letting. . . . Bids will be declared non-responsive if all DBE Utilization forms are not received by the District Contracts Office by 5:00 P.M., on the third business day following the letting. . . .

   
   

9. Petitioner and Intervenor were represented at the pre- bid conference conducted by Respondent. From the discussion held in the pre-bid conference, Intervenor in the person of its President Bilal Saleem, understood that the Utilization Summary Form 275-020-003, was to be provided with the bid submission or the bid would be declared non-responsive. Consistent with that understanding Intervenor provided the DBE Utilization Summary Form with its bid submission. Petitioner did otherwise.

10. When Intervenor submitted its bid response, it included the Disadvantaged Business Enterprise (DBE) Utilization Summary Form 275-020-003 reflecting its full quote of $241,971.40, in that Intervenor is a DBE firm.

11. Petitioner provided a DBE Utilization Form 275-020-004 with its bid submission which was not signed on the signature line by the DBE representative submitting the quote found within Petitioner's submission. The submission of the Utilization Form noted that the amount to be paid to the DBE subcontractor was

    $59,200, out of a total price quote of $229,279. The unsigned Utilization Form described the activity as "mowing large machines" to be done by R & L Cleaning Services (Black), 2090

    South Nova Road, Daytona Beach, Florida 32115, telephone no. (904) 761-1001.

12. Petitioner's provision of the unsigned DBE Utilization Summary Form 275-020-004 with its bid submission was not in keeping with any instructions or explanations provided by Respondent concerning the manner in which DBE utilization would be described by bidders.

13. Upon the third day following the bid opening, Petitioner submitted a DBE Utilization Summary Form 275-020-004 signed by the Vice President of R & L Cleaning Services, reflecting the same information as had been provided on the Utilization Form provided with Petitioner's bid submission. In addition, upon the third day following the bid opening, Petitioner provided the DBE Utilization Summary Form 275-020-003, reflecting R & L Cleaning Services as being the DBE subcontractor for a DBE goal of $59,200, representing 26 percent of the total project "price quotation," which was also reflected on that form.

14. Given the inconsistencies in the information provided to Petitioner and other businesses solicited to bid on the project, the question arises whether Petitioner has sufficiently conformed to the expectations of Respondent for reporting information on DBE compliance.

15. The issue of compliance by the reporting of DBE goals by Petitioner was promoted by action of the Respondent at the bid opening for the project on August 20, 1998, in which Intervenor

    whose price quotation was $241,971.40, second low quote, was declared the responsive low bidder for the project and a recommendation made to award the contract to Intervenor. This was followed by correspondence of August 31, 1998, from Respondent to Petitioner in which Jane E. Jones, District Contract Administrator for Respondent, District 2 informed Petitioner that its bid had been found non-responsive for the following reason:

    DBE Utilization Summary form was not completed and submitted with your bid. As per our advertisement and Florida Administrative Code 14-78, the DBE Utilization Summary form #275-020-003 must be submitted with your bid. Your bid did not include this form.

    
    

16. In turn, Patrick Daugherty, Secretary and Treasurer for Petitioner, wrote Ms. Patsy Elkins of the Florida Department of Transportation on September 1, 1998, concerning Petitioner's response to the requirement for providing information on DBE compliance. This correspondence pointed out the instructions for completing Utilization Forms 275-020-003 and 275-020-004 as constituting the reason why Petitioner had taken advantage of the three-day period in which to submit DBE forms. This was followed by the Notice of Protest for the project dated September 2, 1998 and ultimately the Formal Protest dated September 9, 1998, by Petitioner.

17. Although, submission of the unsigned Disadvantaged Business Enterprise (DBE) Utilization Form 275-020-004 with the

    bid documents did not comport with any instructions or information provided from Respondent to Petitioner, it does not matter. Beyond the submission of incomplete information on the wrong form at the time of the bid submission, Petitioner complied with the Respondent's instructions for completing the Utilization Forms 275-020-003 and 275-020-004 within the third business day after the letting. These facts are found in a setting in which Ms. Jones as District Contract Administrator, and policymaker, acknowledged the confusion in the instructions that had been given to the bidders concerning the submission of DBE compliance information and the lack of an explanation for declaring Petitioner non-responsive for failure to submit needed information, other than to state that some part of the instructions called for Petitioner to submit the DBE Utilization Summary Form 275-020-003 at the time the bid was submitted.

18. On balance, the facts established Petitioner's compliance with the requirements to state DBE goals. Therefore, Petitioner is the apparent responsive low bidder.

    Rejection of All Bids

    
    

19. Respondent through its bid tabulation had begun its posting on August 31, 1998, following its decision finding Intervenor the responsive low bidder. Respondent then determined as of September 3, 1998, to reject all bids "due to conflicting information in the bid package." This notice rejecting all bids was posted on September 3, 1998, with an ending date for posting

    of September 8, 1998. Addendum 4 also informed bidders that all bids had been rejected for the project "due to conflicting information in the bid package."

20. While Intervenor had supported Respondent's decision to reject Petitioner's bid, Intervenor was in agreement with Petitioner's September 9, 1998 Formal Protest of the Respondent's decision to reject all bids.

21. In the context of the decision to reject all bids, Ms. Jones discovered that only one of the four bidders on the project had received Addendum 3.

22. Addendum 3 was dated August 7, 1998, and was only received by Intervenor among the four bidders.

23. Addendum 3 stated:

    
    

    Addendum No. 3, Financial Project No. 21477217232, E-2B59

    
    

    Attached are the Approximate Quantities with a brief explanation that these quantities are for one cycle and that the begin date for this contract will be January 1, 1999.

    
    

    Also, attached is a revised Bid Blank and Calendar of Events for this project. These forms must be utilized when bidding on this project August 20, 1998 at 2:00 p.m.

    
    

    Please sign, date and fax a copy of this addendum back to me by close of business today to indicate receipt. Also, include a copy of this addendum with your bid.

    
    

24. As Ms. Jones explains, Addendum 3 was important in that it attempted to establish "posting rules" that had been left out before. Ms. Jones also expressed concern in that in the absence

    of receiving Addendum 3, Petitioner had not included a copy of Addendum 3 with Petitioner's bid submission.

25. All participating bidders had received a copy of Addendum 1 for the project. Addendum 1 stated approximate quantities in relation to places and hectares to be addressed by the contractor. Addendum 1 in describing the attachment of that information stated:

    Attached are location sheets for the roadside mowing and litter removal, edging of sidewalk and curb and gutter sections for the above referenced project.

    
    

26. Addendum 3 by its attachment pertaining to approximate quantities mirrored the attachments to Addendum 1, but its attachment had the following information in addition to that found within the attachment to Addendum 1:

    THE QUANTITIES LISTED ARE APPROXIMATE QUANTITIES FOR ONE CYCLE

    
    

    THE BID QUANTITIES ARE APPROXIMATE AND ARE GIVEN AS AN AID TO THE CONTRACTOR. THE ESTIMATED QUANTITIES OF WORK TO BE PERFORMED MAY BE INCREASED, DECREASED, OR OMITTED. THE CONTRACTOR WILL BE PAID FOR WORK COMPLETED AND ACCEPTED.

    
    

    THIS CONTRACT WILL BEGIN JANUARY 1, 1999.

    
    

27. The calendar of events that was referred to in Addendum

    
    

    3 as an attachment stated the following:

    
    

    FIN Project Number 21477217232 Contract Number E-2B59

    Roadside mowing and litter removal, edging of sidewalk and curb and gutter sections.

    
    

    Duval County

    06-29-98 Mailed Bid Solicitation Notice.

    
    

    06-29-98 Published Advertisements in Florida Times Union,

    07-06-98 Gainesville Sun, Tallahassee Democrat & Tampa Tribune 07-15-98 a MANDATORY PREBID CONFERENCE @ 2:00 p.m.

    Jacksonville Urban Office 2250 Irene Street Jacksonville, Florida

    
    

    Kelly Stroupe 904-381-8777

    
    

    08-20-98 Bid opening - 2:00 P.M. - Large Conference Room 1901 South Marion St., Lake City, FL 32025

    
    

    08-27-98 Evaluation committee meeting, Encumber funds.

    
    

    08-31-98 Presentation of bid results to Executive Committee 08-31-98 4:15 p.m. - Begin Posting of Bid - 72 hours

    09-07-98 5:00 p.m. - End Posting of Bid - 72 hours 09-30-98 Contract to Contractor for Signature

    10-09-98 Execution of Contract and mail to Contractor(2), District Office Fiscal(2), Maintenance/Construction(3) District Office File(1)

    
    

28. The Calendar of Events referring to the bid opening on August 20, 1998, was information found in Addendum 2.

29. Obviously some of the events that were described in the calendar attached to Addendum 3 had already transpired before the August 7, 1998 preparation date of Addendum 3.

    CONCLUSIONS OF LAW

    
    

30. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action in accordance with Sections 120.569, 120.57(1), and 120.57(3), Florida Statutes.

31. Consistent with Section 120.57(3)(b), Florida Statutes, Petitioner timely filed its Notice of Protest to the decision finding Petitioner's bid un-responsive to the project and timely filed the Notice of Protest contesting the decision to reject all bids, followed by a timely filed Formal Written Protest.

32. The issues in this case are considered in accordance with Section 120.57(3)(f), Florida Statutes, which provides:

    In a competitive-procurement protest, no submissions made after the bid or proposal opening amending or supplementing the bid or proposal shall be considered. Unless otherwise provided by statute, the burden of proof shall rest with the party protesting the proposed agency action. In a

    competitive-procurement protest, other than a rejection of all bids, the administrative law judge shall conduct a de novo proceeding to determine whether the agency's proposed action is contrary to the agency's governing statutes, the agency's rules or policies, or the bid or proposal specifications. The standard of proof for such proceedings shall be whether the proposed agency action was clearly erroneous, contrary to competition, arbitrary, or capricious. In any bid-protest proceeding contesting an intended agency action to reject all bids, the standard of review by an administrative law judge shall be whether the agency's intended action is illegal, arbitrary, dishonest, or fraudulent.

33. In challenging the issue of responsiveness of its bid submission, Petitioner must show that the Respondent's proposed action to reject Petitioner's bid response is contrary to the Respondent's governing statutes, rules, or policies, or the bid solicitation, or proposals specifications. In that connection, it is Respondent's use of its rules, policies, and bid

    solicitation in relation to the provision of information concerning DBE compliance that is under contest. In furtherance of its burden, Petitioner has proven that, given the confusion that was created by Respondent's instructions, the inconsistencies that have been described in the facts, it would

    be arbitrary for Respondent to reject Petitioner's bid submission as un-responsive for failing to provide Petitioner's DBE Utilization Summary Form 275-020-003 with the bid submission.

34. Having in mind the lack of consistency in the explanations which Respondent gave the bidders concerning the provision of the DBE compliance forms, it would be arbitrary for the proposed agency action declaring Petitioner un-responsive to be sustained, in a setting in which Petitioner has complied with the instructions for completing Utilization Forms 275-020-003 and 275-020-004 by providing both forms no later than 5:00 P.M. on the third business day after the letting.

35. As with the issue of responsiveness of Petitioner's bid, Petitioner and Intervenor bore the burden of proof to show that Respondent's intended action to reject all bids was illegal, arbitrary, dishonest, or fraudulent. That proof has not been made. Upon the facts found, the Respondent did not act illegally, arbitrarily, dishonestly, or fraudulently when it announced its decision to reject all bids in recognition that the majority of bidders had not received Addendum 3.

RECOMMENDATION

Upon consideration of the facts found and conclusions of law reached, it is

RECOMMENDED:

That a final order be entered finding that Petitioner submitted a responsive bid for the project but upholding

Respondent's decision to reject all bids.

DONE AND ENTERED this 1st day of March, 1999, in Tallahassee, Leon County, Florida.

CHARLES C. ADAMS

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 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 1st day of March, 1999.

COPIES FURNISHED:

Joseph A. Lane, Esquire Lowndes, Drosdick, Doster,

Kantor and Reed, P.A. Post Office Box 2809 Orlando, Florida 32802

Brian F. McGrail, Esquire Department of Transportation Haydon Burns Building

Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399-0458

Bilal Saleem, Personal Representative Saleem Lawn Service, Inc.

Post Office Box 26736 Jacksonville, Florida 32226

Thomas F. Barry, Secretary C/O James C. Meyers, Clerk 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

605 Suwannee Street

Tallahassee, Florida 32399-0458

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: 98-005018BID

Orders for Case No: 98-005018BID