STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
SPEC INCORPORATED, )
)
Petitioner, )
)
vs. ) Case No. 01-1169BID
)
DEPARTMENT OF TRANSPORTATION, )
)
Respondent, )
)
RECOMMENDED ORDER
Pursuant to notice, a hearing was held in this case in accordance with Section 120.57(1), Florida Statutes, on April 20, 2001, in Tallahassee, Florida, before Stuart M. Lerner, a duly-designated Administrative Law Judge of the Division of Administrative Hearings.
APPEARANCES
For Petitioner: Daniel Te Young, Esquire
Smith, Currie & Hancock
1004 DeSoto Park Drive, Suite 600-A Tallahassee, Florida 32301
For Respondent: Brian A. Crumbaker, Esquire
Department of Transportation 605 Suwannee Street
Haydon Burns Building, Mail Station 58 Tallahassee, Florida 32399-0458
STATEMENT OF THE ISSUE
Whether Petitioner's protest challenging the Department of Transportation's Notice of Intent to Award Contract No. E-6A14,
FIN Project No. 251999-1-32-01/251999-1-52-01, to A-1 Duran
Roofing, Inc., should be sustained in whole or in part.
PRELIMINARY STATEMENT
On March 26, 2001, the Department of Transportation (Department) referred to the Division of Administrative Hearings (Division) Petitioner's Formal Written Protest of the Department's announced intention to award the contract (Contract No. E-6A14) for FIN Project No. 251999-1-32-01/251999-1-52-01
(involving the "replacement of the District warehouse roof located at the District Office Complex, 1000 Northwest 111th Avenue Miami, Florida") to A-1 Duran Roofing, Inc. In its Formal Written Protest, Petitioner alleged that the solicitation process that culminated in the challenged Notice of Intent to Award was flawed, arguing as follows:
FDOT has solicited bids in a manner contrary to its governing statutes, rules and/or policies. FDOT failed to procure competitive sealed bids as mandated by section 287.057 of the Florida Statutes. Instead, upon information and belief, FDOT did not advertise the letting of the Project, but simply chose three companies from whom FDOT wanted to obtain bids (A-1 Duran Roofing, Inc., Zurqui Construction Services, Inc. and Grace & Naeem Uddin, Inc.), contacted the three companies by telephone and obtained bids from those three companies only. FDOT solicited bids without competition, improperly precluding SPEC and other potential bidders from bidding on the Project.
The solicitation that is the subject of this protest is FDOT's fourth solicitation of bids for the Project. The first solicitation occurred over three years ago. SPEC was the lowest responsive bidder on each of the first three bids, but each time FDOT refused to award the contract to
SPEC. 1/
Section 287.057(1) of the Florida Statutes requires that all contracts for the purchase of contractual services in excess of $25,000.00 be awarded by competitive sealed bidding. See also Fla. Admin. Code
R. 60A-1.001(10). The competitive sealed bid requirement of section 287.057(1) applies to the letting of a contract to repair the roof of FDOT's district warehouse located at the FDOT District 6 office complex. There are certain specific exceptions to the requirement to seek competitive sealed bids, but none apply here.
FDOT's notice of intent to award the contract to A-1 is the result of a solicitation process without competition that violates FDOT's governing statutes, rules, and/or policies. FDOT did not procure any competitive sealed bids. Instead, upon information and belief, FDOT obtained bids from three companies chosen by FDOT. This process improperly precluded SPEC from submitting a bid, and was contrary to competition.
SPEC was the lowest responsive bidder the first three times FDOT solicited bids for the Project. SPEC would have submitted a bid on the fourth letting had FDOT complied with its governing statutes and given SPEC, and other potential bidders, the opportunity to do so. There is no basis in law or fact for the solicitation process employed by FDOT. Hence, the notice of intent to award is contrary to competition, clearly erroneous, arbitrary and capricious,
and contrary to FDOT's governing statutes, rules and/or policies.
Under such circumstances, Petitioner contended, "a recommended order and final order [should] be entered in accordance with [its] protest, finding that: the solicitation process employed by FDOT was contrary to competition, clearly erroneous, arbitrary and capricious; and rejecting all bids and re-letting the Project with competition."
On March 29, 2001, the undersigned issued a Notice advising the parties that an evidentiary hearing on Petitioner's Formal Written Protest would be held on April 20, 2001. On April 18, 2001, Respondent filed a Motion to Relinquish Jurisdiction or, in the Alternative, to Dismiss, claiming that Petitioner lacks standing to protest the Notice of Intent to Award Contract No.
E-6A14 to A-1 Duran Roofing, Inc. During a telephone conference call held that same day, the undersigned advised the parties that he would address the issues raised in Respondent's motion in his recommended order (after the parties had had the opportunity to litigate these issues at the evidentiary hearing scheduled for April 20, 2001, and to present written argument on these issues in their proposed recommended orders).
On April 19, 2001, in accordance with the undersigned's March 29, 2001, Order of Pre-hearing Instructions, the parties filed their Joint Pre-Hearing Stipulation, which contained,
among other things, stipulated facts and the parties' "position" statements.
The following were the stipulated facts set forth in the parties' Joint Pre-Hearing Stipulation:
SPEC is a corporation organized under the laws of the State of Florida. It is engaged in the construction business and maintains its principal business office address at 13945 S.W. 157th Street, Miami, Florida 33177.
The subject matter of this protest, Financial Project No. 251999-1-32-01/251999- 1-52-01 (Contract No. E-6A14), is for the replacement of the district warehouse roof located at the District Office Complex, 1000 Northwest 111th Avenue, in Miami, Florida.
For Contract No. E-6A14, Nancy Lyons, the Contract Administrator for the Department's District VI, requested bids from three firms: A-1 Duran Roofing, Inc.; Zurqui Construction Services, Inc. (hereinafter Zurqui); and Grace & Naeem Uddin, Inc. (hereinafter Grace).
The Department did not request SPEC to submit a bid. SPEC did not submit a bid.
The Department received bids from A-1, Zurqui, and Grace.
The Department posted its intent to award a contract for the Project to A-1 Duran Roofing, Inc. (hereinafter A-1), on January 26, 2001.
The solicitation that is the subject of this protest is the Department's fourth letting related to the District VI warehouse roof replacement.
The Department advertised the first three solicitations relating to the District VI warehouse roof replacement.
On September 25, 1997, the Department opened proposals submitted by SPEC and two other bidders. On October 17, 1997, the Department opened the price proposals submitted by each bidder. On October 30, 1997, the Department posted its results of the proposal evaluations at the District office, and noticed its intent to award the contract to ART Design and Construction, Inc. (hereinafter ART).
SPEC protested the Department's notice of intent to award the contract to ART. Shortly thereafter, the Department determined that it made mistakes in the procurement and, in order to rectify those mistakes, would re-let the project in an entirely different manner.
In the second letting of the Project, the Department let the Project as an "informal bid" rather than a "request for proposal[s]" and removed the point system for the evaluation of bids.
SPEC submitted a bid for $55,000 and A-1 submitted a bid for $59,000.
The Department rejected all bids for the second letting and stated that it would re-let the project after making changes to the bidding documents to request price[s] for wood replacement and roof drainage.
In the third letting, the Department revised the bidding documents to provide for wood replacement and roof drainage. The Department advertised the project as a design-build project.
The Department received informal bids for the third letting on August 27, 1998. SPEC submitted a bid of $50,000; A-1
submitted a bid of $52,000; and Southern Coast Enterprises, Inc., submitted a bid of
$72,300.
On September 24, 1998, the Department posted its intent to award the project to
A-1. SPEC submitted a notice of protest and formal written protest (hereinafter SPEC Protest-2).
While the SPEC Protest-2 was pending, the Department, on December 17, 1998, posted its notice of intent to reject all bids. SPEC timely submitted its notice of protest and formal written protest challenging the Department's notice of intent to reject all bids, and moved to consolidate the protest with the SPEC Protest-2. SPEC subsequently withdrew its protest voluntarily, and the Department entered a final order accordingly.
The "position" statement that Petitioner set forth in the parties' Joint Pre-Hearing Stipulation read as follows:
The subject matter of this protest is the project to replace the roof of FDOT's District Six warehouse building located at the District Office Complex, 1000 N.W. 111th Avenue, Miami, Florida 33172 (the "Project"). The solicitation that is the subject of this protest is FDOT's fourth solicitation of bids for the Project.
In the first three solicitations, the letting of the Project was duly advertised. SPEC was the lowest responsive bidder on each of the first three bids, the first of which occurred over three years ago. At each letting, FDOT refused to award the contract to SPEC.
Section 337.11(3)(a) of the Florida Statutes provides that FDOT shall advertise the letting of all construction contracts of
$250,000 or less. 2/ FDOT complied with
section 337.11(3)(a) when it advertised the first three lettings of the Project.
However, FDOT admittedly failed to advertise the fourth letting of the Project. Hence, the manner in which FDOT solicited bids was contrary to the Department's governing statutes, rules, procedure, policies, practices, or the proposal specifications, and is thus clearly erroneous, arbitrary, capricious or contrary to competition. In the alternative, should it be found that FDOT was authorized to choose three bidders from whom to solicit bids, it was clearly erroneous, arbitrary, capricious or contrary to competition for FDOT not to ask SPEC to submit a bid.
During the course of the protest of the third letting of the Project, FDOT advised that it intended to rewrite the specifications for the replacement of the roof and to relet the Project. Accordingly, FDOT noticed the rejection of all bids on December 17, 1998. In FDOT's posting of the rejection of all bids, FDOT stated that "[t]his contract will be re-advertised at a later date." (SPEC 0111) Based upon FDOT's representation that the Project would be relet and advertised, SPEC agreed to withdraw its protest of the third solicitation. Implicit in the actions of FDOT and SPEC was the understanding, and promise, that SPEC would be provided the opportunity by FDOT to bid upon the Project once redesign was complete. Moreover, FDOT expressly promised to re-advertise the Project in its notice of intent to reject all bids. Hence, it was clearly erroneous, arbitrary, capricious or contrary to competition for FDOT to not ask SPEC to submit a bid on the Project. Thus, FDOT should be directed to re-let the Project and either advertise the next letting of the Project or ask SPEC to submit a bid.
In its "position" statement, Respondent contended that the District VI warehouse roof replacement project (Project) was a "non-design-build Fixed Capital Outlay project," the solicitation of bids for which was governed, not by the provisions of Chapter 337, Florida Statutes, and Rule Chapter 14-78, Florida Administrative Code, but by Chapter 255, Florida
Statutes, and Rule 60D-5.0073, Florida Administrative Code, with which it complied. Respondent further argued in its "position" statement that it "made no implied promise upon which SPEC could or would have relied upon in deciding to voluntarily withdraw its protest" during the "third letting of the Project." In addition, it reiterated the argument it had made in its Motion to Relinquish Jurisdiction or, in the Alternative, to Dismiss that Petitioner is without standing "to challenge the present notice of intent to award."
As noted above, the final hearing in this case was held on April 20, 2001, as scheduled. Three witnesses testified at the hearing: Pedro Glaria, Petitioner's president, and two Department employees, Brenda Garner and Nancy Lyons. In addition to the testimony of these three witnesses, the following exhibits were offered and received into evidence at the hearing: Petitioner's Exhibits A through D, F through M, O, and P, and Respondent's Exhibits 1 through 8, 10 through 15, and
17.
At the conclusion of the evidentiary portion of the final hearing, the undersigned, on the record, established a deadline (ten days from the date of the filing of the hearing transcript with the Division) for the filing of proposed recommended orders.
The Transcript of the hearing (consisting of two volumes) was filed with the Division on May 7, 2001.
On May 17, 2001, Petitioner filed a motion requesting that the deadline for filing proposed recommended orders be extended until May 21, 2001. A hearing on the motion was held by telephone conference call on May 17, 2001. After hearing argument from the parties, the undersigned announced that he was granting the motion. The parties thereupon agreed that the undersigned could have an additional four days to issue his recommended order in this case.
Petitioner and Respondent timely filed their Proposed Recommended Orders on May 21, 2001. These post-hearing submittals have been carefully considered by the undersigned.
FINDINGS OF FACT
Based upon the evidence adduced at hearing, and the record as a whole, the following findings of fact are made to supplement the stipulations of fact set forth in the parties' Joint Pre-Hearing Stipulation: 3/
The District VI Warehouse.
The District VI (District) warehouse is used to store archived records, paper supplies, and surplus equipment. In addition, it houses the District's divers and their gear.
The District Warehouse Roof
Since at least the time of the first solicitation, the District warehouse roof has had a ponding problem and been in disrepair.
The condition of the roof has deteriorated to such an extent that there is now an urgent need to replace it.
The current roof has five overflow drains or scuppers.
The Department has determined that additional scuppers are necessary to provide adequate drainage.
The List of Interested and Prequalified Contractors
When the District warehouse roof replacement project was originally advertised in 1997, 25 contractors, including Petitioner, A-1, Zurqui, Grace, ART, and Southern Coast Enterprises, requested that the Department send them information about the project.
The Department compiled a list containing these 25 contractors' names, addresses, and telephone and fax numbers.
The Department subsequently prequalified each of these
25 contractors.
Petitioner
Pedro Glaria is Petitioner's president.
He is now, and has been since 1981, licensed in the State of Florida as both a general contractor and a professional engineer.
Petitioner currently has two contracts with the Department, the dollar values of which are $140,000.00 and
$110.00.00. Both contracts were awarded during the summer of 2000. They each require Petitioner to provide "roadside mowing" and "roadside litter pickup" services.
Since its incorporation in 1989, Petitioner has had a total of 10 to 12 contracts with the Department, at least one of which involved roofing work. At no time has the Department indicated to Mr. Glaria that it has been dissatisfied with Petitioner's work.
The Third Solicitation
In the third solicitation, as in the first two solicitations, the District warehouse roof replacement project was advertised as a design-build project (involving both design and construction services).
The Notice of Informal Bid (No. 6012DS) that the Department used to solicit bids contained the following "work description," "evaluation criteria," and "project information":
Work Description
Sealed written bids are requested from licensed roofing contractors, general building contractors, professional architectural engineers or professional consultant services for the purpose of a design-build project consisting of roof replacement for the District warehouse building located at the District office complex, 1000 Northwest 111th Avenue, Miami, Florida. The bidder shall provide all labor, materials, supplies, travel, consultant inspection services, shop drawing reviews to design, and furnish plans and specifications necessary to perform all work required for this project.
Evaluation Criteria
The Florida Department of Transportation (FDOT) will evaluate the technical bid along with the price bid at the same time. The Department may award this contract to the firm whose proposal meets the needs of the Department as outlined in the technical bid criteria, and to the responsible, responsive bidder submitting the lowest total bid.
Technical Bid Will Consist of the Following
Experience and qualifications of personnel
Plans and specifications. 3). Design
Warranty
Contract time
Price Bid
3). Certified Minority Business Enterprise (CMBE) Participation . . .
Project Information
ESTIMATED BUDGET AMOUNT: N/A
With respect to a protest of the specifications contained in an Invitation to Bid or in a Request for Proposals, the Notice of Protest shall be filed in writing within seventy two (72) hours after the receipt of notice of the project plans and specifications or intended project plans and specifications in an Invitation to Bid or Request for Proposals."
A formal written protest stating with particularity the facts and law upon which the protest is based and in substantially the same form as a petition in accordance with Rule 60-4.012, F.A.C., shall be filed within ten (10) days after filing of the notice of protest. The ten (10) day period includes Saturdays, Sundays and Legal Holidays; provided, however, if the last day is a Saturday, Sunday or Legal Holiday the period shall run until the end of the next day which is neither a Saturday, Sunday or Legal Holiday. Any person who files an action protesting an award shall post with the Department, at the time of filing the formal written protest, a bond payable to the Department in the amount equal to one percent (1%) of the Department's estimate of the contract amount for the purchase requested or five thousand dollars ($5,000.00), whichever is less, which bond shall be conditioned upon the payment of all costs which may be adjudged against him in the Administrative hearing in which the action is brought and in any subsequent Appellate Court Proceedings. In lieu of a bond, the Department may accept a cashier's check or money order in the amount of the bond. The protest must be filed with The Department of Transportation, Clerk of Agency Proceedings, 605 Suwannee Street, Tallahassee, Florida 32399-0450
THE DEPARTMENT RESERVES THE RIGHT TO REJECT ANY OR ALL PROPOSALS RECEIVED.
Exhibit "A" (Attachment V) to the Notice of Informal Bid was the "Scope of Services for Design Build of Replacement Roof at the District Warehouse Building," Section 2.5(a) of which provided as follows:
Bidder shall furnish plans and specifications that comply with the South Florida Building Code, Permits Office of the Department of Management Services, and the State Fire Marshall's Office, including but not limited to the following:
The design of the roof shall provide for the installation of overflow drains or scuppers in addition to the existing scuppers to prevent an accumulation of water.
Petitioner's technical bid, which was prepared by Mr.
Glaria, contained a roof design that did not provide for the installation of the additional scuppers required by Section 2.5(a) of Exhibit "A."
In Mr. Glaria's professional opinion, these additional scuppers were unnecessary for the design of the roof to comply with the South Florida Building Code. (Petitioner, however, did not file a protest challenging the bid specifications.)
By not incorporating the additional scuppers in its design of the roof, Petitioner was able to submit a price bid lower than it could have offered had its design been in compliance with the requirements of Section 2.5(a) of Exhibit "A."
All three members of the Department's Technical Review and Awards Committee found Petitioner's technical bid to be non- responsive because it deviated from the requirements of Section 2.5(a) of Exhibit "A.".
Had the Department not rejected the Department's technical bid on the grounds that it was non-responsive, Petitioner would have had an unfair competitive advantage over those bidders whose design of the roof included the additional scuppers required by Section 2.5(a) of Exhibit "A."
Petitioner's Formal Protest of the Department's announced intention to contract with A-1 contained the following argument concerning the Department's determination that Petitioner's technical bid did not "comply with design criteria for overflow scuppers":
FDOT's Technical Panel determined that SPEC failed to comply with the design criteria for overflow scuppers because SPEC did not provide for additional
scuppers. . . . The roof already contains five scuppers. As engineer of this design- build project, SPEC determined that additional scuppers were not necessary for proper drainage of the roof. Rather, the roof only necessitated the installation of crickets between the existing scuppers to facilitate drainage of water between the scuppers. The drawing submitted with SPEC's bid reflects the location of the existing scuppers and the use of the crickets to drain any water on the roof.
A-1's drawing reflects the use of additional scuppers, but the location of
these additional scuppers cannot assist water drainage as the scuppers are located above the crickets, and therefore above roof level, thereby losing any
effectiveness. . . . The additional scuppers provided by A-1 will not prevent the accumulation of water as required by section 2.5 and will only create unnecessary expenditure for FDOT.
SPEC's design for the drainage of water from the roof is superior to that of A-1, complies with the requirements of the bidding documents and does not require unnecessary expenditure of funds. Accordingly, SPEC should be awarded the project.
The Department's December 17, 1998, Notice of Intent Not to Award (Re: Informal Bid No. 6012DS) stated, in pertinent part, as follows:
It is the intent of the Department of Transportation to not award the above Contract. This contract will be re- advertised at a later date. . . .
ALL BIDS HAVE BEEN REJECTED
On January 4, 1999, Petitioner's attorney, Alejandro Espino, Esquire, sent a letter to Department Assistant General Counsel Brian McGrail, which read as follows:
This letter confirms our telephone conversation today wherein you stated that the Florida Department of Transportation ("FDOT") rejected all bids on the above referenced project because FDOT intends to rewrite the specification for the mansard roof wood replacement and because FDOT has no available funding for the project.
However, you stated that FDOT will not provide a written explanation to SPEC
Incorporated or any other bidder for the rejection of the bids for the project.
If you believe that the above is not an accurate summary of our conversation, please contact me at your earliest convenience.
Best regards.
Mr. McGrail responded to Mr. Espino by letter dated January 4, 1999, which read as follows:
I am in receipt of your letter this morning regarding our telephone conversation concerning the captioned matter. In response to your rendition of our conversation, I must clarify that I expressed my understanding that the specifications for the project will be reviewed, which may include the issues raised in the protest about the bid specifications, before any further action will be taken by the Department.
However, the Department's decision to reject all bids is due to the unavailability of funding for this contract at the present time. I cannot speak to the future of the project with any degree of certainty, nor represent any to you or your client. This is a matter strictly for District VI to decide, and I am not involved in that decision making process.
The Department will defend the decision to reject all bids based on the lack of available funding. I refer your attention to Attachment II of Informal Bid #6012DS, Contractual Obligation, Section 1.10 through
1.13. In particular, Cancellation Privileges, regarding the Department's obligations under the Notice of Informal Bid and subsequent agreement shall be subject to and contingent upon the availability of monies appropriated for this contract. Additionally, I am sure that you are aware that the bid documents clearly and
repeatedly state the Department's reservation of rights to reject any and all bids for this bid letting.
Based on the foregoing, it is clear that the Department's action in rejecting all bids is appropriate under Florida law, if not required, due to the lack of available funds at the present time. If Spec Inc. intends to p[rotest] the Department's decision to reject all bids, I feel it is my responsibility to advise you that the Department will seek any and all costs and attorney fees to which it may be entitled against the protest bond filed in this case. If however, Spec Inc. decides to withdraw the current protests against the intent to award filed on September 28, 1998, and the rejection of all bids filed on December 22, 1998, the Department will agree to return the protest bond in full.
After you have had an opportunity to review this matter with your client, please advise at your earliest convenience how Spec Inc., wishes to proceed.
Thank you for your cooperation in this matter. I look forward to a prompt response, as the hearing date is approaching rapidly.
Mr. Glaria "realized that [Petitioner was] going to have a hard time [in its bid protest] to overcome the issue of lack of funding." In addition, he had the "hope that [Petitioner] would [have the opportunity to] bid the project again for the fourth time." Accordingly, he authorized Mr. Espino to file, on behalf of Petitioner, the following Notice of Voluntary of Dismissal of Formal Protest, dated January 11, 1999:
Petitioner, SPEC Incorporated, hereby withdraws its formal protest, dated October 18, 1998, of the Florida Department of Transportation's notice of intent to award Informal Bid No. 6012DS, Financial Project Nos. 2519993201/25199915201, Dade County, to A-1 Duran Roofing, Inc. Upon agreement of counsel for the parties, SPEC Incorporated's bid protest bond will be returned to it.
Mr. Espino, in addition, sent the following letter, dated January 11, 1999, to Mr. McGrail:
Based on the Florida Department of Transportation's ("FDOT") representation that it rejected all bids for Informal Bid No. 6012DS, Financial Project Nos.
2519993201/25199915201, Dade County, because of the unavailability of funds and because of necessary amendments to the project specifications, SPEC Incorporated hereby withdraws its formal protest of FDOT's notice of intent to reject all bids. As we discussed earlier, FDOT will return SPEC Incorporated's protest bond thirty days after FDOT files . . . the final order in this matter.
If you have any questions or comments, please do not hesitate to contact me.
Fourth Solicitation
The Project is funded through appropriations made by the Legislature in the fixed capital outlay category. 4/
Fixed capital outlay funds are subject to reversion if not obligated (through the execution of a contact or the issuance of a notice of intent to award a contract) within 19 months of their appropriation by the Legislature.
In mid-January of 2001, Brenda Garner, the manager of the Department's Fixed Capital Outlay Program, advised Ms. Lyons that, if not obligated by February 1, 2001, a portion of the funds ($45,000.00) appropriated for the Project would revert.
Ms. Lyons (who had not been involved, as the District's contract administrator, in the first three solicitations) quickly proceeded (in a day's time) to assemble the documents needed to solicit bids for the Project.
These documents included detailed plans and specifications that the District's senior structural engineer and senior project manager had prepared, at Ms. Lyons' request, following the third solicitation, as well as "boilerplate" that the Department uses for non-design-build fixed capital outlay projects like the Project.
Ms. Lyons determined that it was unnecessary to advertise for bids and that the Department only needed to solicit bids from three contractors.
She selected these three contractors from the list of interested and prequalified contractors that the Department had compiled in the first solicitation.
As Ms. Lyons was aware, each of the three contractors she selected (A-1, Zurqui, and Grace) was a Certified Minority Business Enterprise (MBE).
She intentionally selected MBE contractors because the District was "trying to meet an MBE goal."
Ms. Lyons had some professional familiarity with the three MBE contractors she selected. A-1 had just completed another roofing project for the District, and Zurqui and Grace were performing construction work at the District office complex.
Ms. Lyons' decision to not include Petitioner among the three contractors asked to submit bids was not made in bad faith.
Inasmuch as the Department was "in a big hurry to get that project done" she did not ask more than three contractors to submit bids.
Ms. Lyons required each of the three contractors to first provide proof that it was a licensed general contractor qualified to work on the Project.
After receiving such proof, Ms. Lyons then asked the three contractors to bid on the Project.
A-1, Zurqui, and Grace submitted their bids on January 25, 2001.
The Technical Review and Awards Committee met on January 26, 2001, to review the bids.
All three bids were deemed to be responsive.
A-1's bid of $58,300.00 was the lowest of the three bids.
Neither Zurqui nor Grace protested the Department's proposed decision, announced in its January 26, 2001, Notice of Intent to Award, to award the contract for the Project to A-1.
Only Petitioner, which had not been invited to submit a bid and had first learned of the fourth solicitation when Mr. Glaria saw the Notice of Intent to Award while at the District office complex on January 26, 2001, filed a protest.
CONCLUSIONS OF LAW
Section 120.57(3), Florida Statutes, sets forth the "procedures applicable to protests to contract bidding or award[s]" by state agencies, such as the Department, subject to the provisions of Chapter 120, Florida Statutes, including protests to contract awards that are the product of competitive negotiations. See Medimpact Healthcare Systems, Inc., v.
Department of Management Services, 2000 WL 1754859 (Fla. DOAH 2000)(Recommended Order)("[I]t appears from the use of the term 'competitive-procurement protest' in paragraph (f) in Subsection
(3) of Section 120.57, Florida Statutes, that Subsection (3) applies to competitive procurement processes irrespective of what method of solicitation (ITB, RFP or ITN) has been used by the procuring agency.").
Section 120.57(3), Florida Statutes, provides as
follows:
Agencies subject to this chapter shall utilize the uniform rules of procedure, which provide procedures for the resolution of protests arising from the contract bidding process. Such rules 5/ shall at least provide that:
The agency shall provide notice of its decision or intended decision concerning a bid solicitation or a contract award as follows:
For a bid solicitation, notice of a decision or intended decision shall be given by United States mail or by hand delivery.
For any decision of the Department of Management Services concerning a request by an agency for approval of an exceptional purchase under part I of chapter 287 and the rules of the Department of Management Services, notice of a decision or intended decision shall be given by posting such notice in the office of the Department of Management Services.
For any other agency decision, notice of a decision or intended decision shall be given either by posting the bid tabulation at the location where the bids were opened or by certified United States mail or other express delivery service, return receipt requested.
The notice required by this paragraph shall contain the following statement: "Failure to file a protest within the time prescribed in s. 120.57(3), Florida Statutes, shall constitute a waiver of proceedings under chapter 120, Florida Statutes."
Any person who is adversely affected by the agency decision or intended decision
shall file with the agency a notice of protest in writing within 72 hours after the posting of the bid tabulation or after receipt of the notice of the agency decision or intended decision and shall file a formal written protest within 10 days after filing the notice of protest. With respect to a protest of the specifications contained in an invitation to bid or in a request for proposals, the notice of protest shall be filed in writing within 72 hours after the receipt of notice of the project plans and specifications or intended project plans and specifications in an invitation to bid or request for proposals, and the formal written protest shall be filed within 10 days after the date the notice of protest is filed. Failure to file a notice of protest or failure to file a formal written protest shall constitute a waiver of proceedings under this chapter. The formal written protest shall state with particularity the facts and law upon which the protest is based. Saturdays, Sundays, and legal holidays shall be excluded in the computation of the 72-hour time periods provided by this paragraph.
Upon receipt of the formal written protest which has been timely filed, the agency shall stop the bid solicitation process or the contract award process until the subject of the protest is resolved by final agency action, unless the agency head sets forth in writing particular facts and circumstances which require the continuance of the bid solicitation process or the contract award process without delay in order to avoid an immediate and serious danger to the public health, safety, or welfare.
1. The agency shall provide an opportunity to resolve the protest by mutual agreement between the parties within 7 days, excluding Saturdays, Sundays, and legal
holidays, after receipt of a formal written protest.
If the subject of a protest is not resolved by mutual agreement within 7 days, excluding Saturdays, Sundays, and legal holidays, after receipt of the formal written protest, and if there is no disputed issue of material fact, an informal proceeding shall be conducted pursuant to subsection (2) and applicable agency rules before a person whose qualifications have been prescribed by rules of the agency.
If the subject of a protest is not resolved by mutual agreement within 7 days, excluding Saturdays, Sundays, and legal holidays, after receipt of the formal written protest, and if there is a disputed issue of material fact, the agency shall refer the protest to the division for proceedings under subsection (1).
Upon receipt of a formal written protest referred pursuant to this subsection, the director of the division shall expedite the hearing and assign an administrative law judge who shall commence a hearing within 30 days after the receipt of the formal written protest by the division and enter a recommended order within 30 days after the hearing or within
30 days after receipt of the hearing transcript by the administrative law judge, whichever is later. Each party shall be allowed 10 days in which to submit written exceptions to the recommended order. A final order shall be entered by the agency within 30 days of the entry of a recommended order. The provisions of this paragraph may be waived upon stipulation by all parties.
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. 6/ 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. 7/ 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. 8/
"To establish that one is adversely affected [within the meaning of Section 120.57(3), Florida Statutes, and therefore entitled to file a protest pursuant thereto], it must be shown that the proposed action [under challenge] will cause immediate injury in fact; and that the injury is of the type that the pertinent statute was designed to protect." Advocacy Center for Persons With Disabilities, Inc. v. Department of
Children and Family Services, 721 So. 2d 753 (Fla. 1st DCA 1998).
The "de novo proceeding" that, pursuant to the mandate of Section 120.57(3), Florida Statutes, must be conducted by an Administrative Law Judge when an "adversely affected" person has filed a "competitive-procurement protest, other than [one
involving] a rejection of all bids," and there are disputed issues of material fact, is "a form of intra-agency review. The Judge may receive evidence, as with any formal hearing under section 120.57(1), but the object of the proceeding is to evaluate the action taken by the agency" based upon the information that was available to the agency at the time it took such action. State Contracting and Engineering Corporation v.
Department of Transportation, 709 So. 2d 607, 609 (Fla. 1st DCA 1998); see also Fairbanks North Star Borough School District v.
Bowers Office Products, Inc., 851 P.2d 56, 60 (Alaska 1992)("The determination of whether the school district had a reasonable basis for its decision should be made based on the information the school district had at the time it awarded the contracts."). The standard of review the Administrative Law Judge is required to employ in evaluating the "protested" agency action is a deferential one. If the Administrative Law Judge concludes that the agency's procurement action had a reasonable basis in fact and law, the Judge may not recommend that the agency reverse its action, even if the Judge, had he or she been in the agency's position, would have taken a different course of action. 9/ Compare with Herbert F. Darling, Inc. v. Beck, 442 F.Supp. 978,
981 (W.D. N.Y. 1977)("The question before the court on the defendants' motion for summary judgment is whether the Regional Administrator's decision disapproving the proposed award to
Darling had a rational basis. . . . This standard of review is designed to ensure that judicial deference is given to the well- reasoned decisions of E.P.A. officials in interpreting the agency's own procurement and contracting regulations. A
court may not set aside agency action solely because it would have interpreted the bidding procedures or the regulations differently had it made the initial determination."); Latecoere International, Inc. v. Department of the Navy, 19 F.3d 1342, 1355-56 (11th Cir. 1994)("This standard requires a disappointed bidder to show 'either that (1) the procurement official's decisions on matters committed primarily to his own discretion had no rational basis, or (2) the procurement procedure involved a clear and prejudicial violation of applicable statutes or regulations.' . . . This deferential standard reflects the respect that reviewing courts are required to accord to agencies in their evaluation of bids and in their interpretation and application of procurement regulations. 'While
contracting officers may not opt to act illegally, they are entitled to exercise discretion upon a broad range of issues confronting them, including considerations of price, judgment, skill, ability, capacity, and integrity in the selection of businesses with whom the government will enter into contracts.' Accordingly, reviewing courts should be concerned with whether the contracting agency provided a coherent and reasonable
explanation of its exercise of discretion. . . . Proof that the award lacked a reasonable basis generally establishes arbitrary and capricious action. Thus, if a reviewing court: finds a reasonable basis for the agency's action, the court should stay its hand even though it might, as an original proposition, have reached a different conclusion as to the proper administration and application of the procurement regulations. Only when the court concludes that there has been a clear violation of duty by the procurement officials should it intervene in the procurement process and proceed to a determination of the controversy on the merits."); and Cincom Systems, Inc. v. United States, 37 Fed.
Cl. 663, 671-72 (1997)("Contracting officials may properly exercise wide discretion in their evaluation of bids and the application of procurement regulations. . . . It is well- settled that courts should respect acts of procuring officials when they exercise their discretionary functions. The
court should not substitute its judgment for that of a procuring agency and should intervene only when it is clear that the agency's determinations were irrational or unreasonable. . . .
It is the burden of the aggrieved bidder to demonstrate that there is no rational basis for the agency's determination.").
In the instant bid protest case, Petitioner argues that the Department acted "contrary to its governing statute" in the fourth solicitation because it did not advertise for bids as
required by Section 337.11(3)(a), Florida Statutes. The Department, on the other hand, contends that the fourth solicitation was "governed," not by Section 337.11(3)(a), Florida Statutes, but by Chapter 255, Florida Statutes, and Rule Chapter 60D-5, Florida Administrative Code, specifically Rule 60D-5.0073, Florida Administrative Code. Having carefully considered the matter, the undersigned agrees with the Department.
Section 337.11(3)(a), Florida Statutes, provides as
follows:
On all construction contracts of $250,000 or less, the [D]epartment shall advertise for bids in a newspaper having general circulation in the county where the proposed work is located. Publication shall be at least once a week for no less than 2 consecutive weeks, and the first publication shall be no less than 14 days prior to the date on which bids are to be received.
It is apparent from a reading of Section 337.11, Florida Statutes, in its entirety, that the "construction contracts"
referred to in subsection (3)(a) of the statute are the same "contracts for the construction of . . . all roads designated as part of the State Highway System or the State Park Road System or of any roads placed under [the Department's] supervision by law" and "contracts for the construction . . . of rest areas, weigh stations, and other structures, including roads, parking areas, supporting facilities and associated buildings used in
connection with such facilities" that are referred to in subsection (1) of the statute. See Palm Beach County Canvassing Board v. Harris, 772 So. 2d 1273 (Fla. 2000)("It is well settled that a statute should be construed in its entirety and as a harmonious whole."); St. Mary's Hospital, Inc. v. Phillipe, 769
So. 2d 961 (Fla. 2000)("It is a cardinal rule of statutory construction that a statute must be construed in its entirety and as a whole."); and Klonis v. Department of Revenue, 766 So. 2d 1186 (Fla. 1st DCA 2000)("In accordance with proper practice in reviewing the provisions of a statute, . . . we look 'to the provisions of the whole law, and to its object and policy,' rather than consider various statutory subsections in isolation from one another and out of context."). The contract for the replacement of the District warehouse roof, which is the subject of the instant bid protest, is not such a "construction contract." Accordingly, Petitioner's reliance on Section 337.11(3)(a), Florida Statutes, is misplaced.
The letting of the District warehouse roof replacement contract is governed, not by Section 337.11(3)(a), Florida Statutes, but by those applicable statutory and rule provisions in Chapter 255, Florida Statutes, and Rule Chapter 60D-5, Florida Administrative Code, dealing, generally, with state "construction projects" and "construction contracts."
Pursuant to Section 255.0525, Florida Statutes, which provides as follows, state "construction projects" costing
$200,000.00 or less, like the Project in the instant case, need not be "publicly advertised":
The solicitation of competitive bids or proposals for any state construction project that is projected to cost more than $200,000 shall be publicly advertised once in the Florida Administrative Weekly at least 21 days prior to the established bid opening. For state construction projects that are projected to cost more than $500,000, the advertisement shall be published in the Florida Administrative Weekly at least 30 days prior to the established bid opening and at least once in a newspaper of general circulation in the county where the project is located at least 30 days prior to the established bid opening and at least 5 days prior to any scheduled prebid conference. The bids or proposals shall be received and opened publicly at the location, date, and time established in the bid or proposal advertisement. In cases of emergency, the Secretary of Management Services may alter the procedures required in this section in any manner that is reasonable under the emergency circumstances.
The solicitation of competitive bids or proposals for any county, municipality, or other political subdivision construction project that is projected to cost more than
$200,000 shall be publicly advertised at least once in a newspaper of general circulation in the county where the project is located at least 21 days prior to the established bid opening and at least 5 days prior to any scheduled prebid conference.
The solicitation of competitive bids or proposals for any county, municipality, or other political subdivision construction project that is projected to cost more than
$500,000 shall be publicly advertised at least once in a newspaper of general circulation in the county where the project is located at least 30 days prior to the established bid opening and at least 5 days prior to any scheduled prebid conference.
Bids or proposals shall be received and opened at the location, date, and time established in the bid or proposal advertisement. In cases of emergency, the procedures required in this section may be altered by the local governmental entity in any manner that is reasonable under the emergency circumstances.
If the location, date, or time of the bid opening changes, written notice of the change must be given, as soon as practicable after the change is made, to all persons who are registered to receive any addenda to the plans and specifications.
A construction project may not be divided into more than one project for the purpose of evading the requirements in this section.
As used in this section, the term "emergency" means an unexpected turn of events that causes:
An immediate danger to the public health or safety;
An immediate danger of loss of public or private property; or
An interruption in the delivery of an essential governmental service.
See Weinstock v. Groth, 629 So. 2d 835 (Fla. 1993)
("[P]sychologists licensed under chapters 490 and 491, Florida Statutes (1991), are not included in the chapter 766 definitions of 'health care provider.' . . . . We agree with the district
court below that the exclusion of psychologists from the various definitions of this term indicates a legislative intent that psychologists not be classified as health care providers."); PW Ventures, Inc. v. Nichols, 533 So. 2d 281 (Fla. 1988)("The express mention of one thing implies the exclusion of another."); State ex rel. Shevin v. Indico Corporation, 319 So. 2d 173 (Fla. 1st DCA 1975)("By express mention in the statute of those against whom costs may be assessed in an action for abatement of a nuisance, the legislature apparently intended to exclude from assessment of costs the two not mentioned--the Attorney General and the State Attorney."); and Mora v. South Broward Hospital District, 710 So. 2d 633 (Fla. 4th DCA
1998)("We note that in the 1995 amendment to chapter 415, the legislature included a section entitled 'Civil Penalties,' section 415.1111. This section provides that anyone named as a perpetrator in a confirmed report of abuse shall be subject to civil fines. This section also provides victims with a private cause of action against the perpetrator of the abuse. But this section provides no civil penalties against those who merely fail to report an incident. Rather, misdemeanor penalties are provided in section 415.111 for violation of the mandatory reporting requirements. It is evident that the legislature considered both civil and criminal penalties under this statute, but subjected only actual perpetrators of abuse to civil
penalties. This is strong evidence of a legislative intent not to provide a civil cause of action for victims against those who fail to report the abuse as required by this act.").
Section 255.29(3), Florida Statutes, authorizes the Department of Management Services to adopt rules establishing "[p]rocedures to govern negotiations for [state] construction contracts . . . when such negotiations are determined by the secretary of the Department of Management Services to be in the best interest of the state."
The Department of Management Services has adopted Rule 60D-5.0073, Florida Administrative Code, pursuant to the authority granted by Section 255.29, Florida Statutes.
At all times material to the instant case, Rule 60D- 5.0073, Florida Administrative Code, has provided, in pertinent part, as follows:
The Department hereby determines that it is in the best interest of the State to waive the requirements of advertising required under Rule 60D-5.003 10/ and bidding required under Rule 60D-5.007 11/ and permit negotiation of contracts within Levels One, Two and Three. The Department hereby delegates authority to each Agency to negotiate and contract in accordance with these rules for projects within these levels. Contract levels shall be as defined in Rule 60D-5.002(2). . . .
(3) Contracts within Levels Two and Three may be negotiated with the firm whose proposal, in the Agency's judgment, best meets the needs of the Agency. The Agency
shall request at least three firms to submit sealed written proposals based on a written specification. The written proposals shall all be opened publicly at the same date, time and place named by the agency. A tabulation of the negotiation results shall be furnished to each firm if
requested. . . .
A "Level Three" contract is defined in Rule 60D- 5.002(2)(c), Florida Administrative Code, as a contract "having a value greater than $25,000 but not exceeding $200,000." The District warehouse roof replacement contract is such a contract. As such, it may be "negotiated" in accordance with the requirements of Subsection (3) of Rule 60D-5.0073, Florida Administrative Code (which do not, consistent with the provisions of Section 255.0525, Florida Statutes, include advertising).
In view of the foregoing, the Department did not act "contrary to its governing statute" by failing to advertise for bids in the fourth solicitation.
Petitioner makes the additional argument that, regardless of what the "governing statute" required or allowed, the Department was obligated to advertise for bids in the fourth solicitation because, in its December 17, 1998, Notice of Intent Not to Award in the third solicitation, it had stated that "[t]his contract will be re-advertised at a later date" and, based upon that statement, Petitioner had "voluntarily
[withdrawn] its protest" of the Department's proposed rejection of all bids. The undersigned disagrees with Petitioner's suggestion that the Department was estopped, on equitable grounds, from changing its mind and not doing what it had said that it would do in its December 17, 1998, Notice of Intent Not to Award.
"As applied to a state agency, the theory of estoppel is limited to those cases involving exceptional and rare circumstances." Warren v. Department of Administration, 554 So.
2d 568 (Fla. 5th DCA 1989).
"[N]ot every promise is sufficiently binding to support a cause of action based on promissory estoppel. Such a promise should be enforced only when necessary to avoid injustice." City of Cape Coral v. Water Services of America, Inc., 567 So. 2d 510 (Fla. 2d DCA 1990).
For promissory estoppel to be applied against the state, "[t]here must be clear and convincing evidence of 'a positive act on the part of some officer of the state upon which the aggrieved party had a right to rely and did rely to its detriment.'" Department of Health and Rehabilitative Services v. Law Offices of Donald W. Belveal, 663 So. 2d 650 (Fla. 2d DCA
1995).
In the instant case, the record is devoid of any persuasive evidence of detrimental reliance on Petitioner's
part. While Mr. Glaria testified that the Department's announced intention to "re-advertise[]" the contract played a role in Petitioner's withdrawal of its protest of the Department's announced intention to reject of all bids in the third solicitation, Petitioner has failed to establish that its withdrawal of the protest was to its detriment inasmuch as no showing has been made that, had Petitioner pursued its protest, it would have been able to meet its burden of proving that the proposed rejection of all bids was "illegal, arbitrary, dishonest, or fraudulent" and that it therefore would have prevailed and obtained the relief sought in the protest.
Indeed, it appears that, if Petitioner had not voluntarily withdrawn its protest, the protest would have been subject to involuntarily dismissal on the grounds that Petitioner lacked standing to protest the rejection of all bids because its technical bid contained a material deviation from the bid specifications 12/ and therefore was non-responsive. See
Tropabest Foods, Inc. v. Department of General Services, 493 So. 2d 50, 52 (Fla. 1st DCA 1986)("[A]lthough a bid containing a material variance is unacceptable, not every deviation from the [bid specifications] is material. It is only material if it gives the bidder a substantial advantage over the other bidders and thereby restricts or stifles competition.").
Petitioner having failed to establish that it relied to its detriment upon the "re-advertis[ing]" representation made by the Department in its December 17, 1998, Notice of Intent Not to Award in the third solicitation, its estoppel argument must be rejected.
Petitioner further claims that, even if "the Department had authority [in the fourth solicitation] to 'request at least three firms to submit sealed written proposals based on a written specification' under Florida Administrative Code Rule 60D-5.0073(3), [the Department's] failure to [have] request[ed] [Petitioner] to submit a bid was clearly erroneous, contrary to competition, arbitrary and capricious, and showed favoritism toward firms that Ms. Lyons thought had performed work or were performing work at District VI." This argument is also without merit.
The decision of the Department, acting through
Ms. Lyons, in the fourth solicitation, to ask A-1, Zurqui, and Grace, but not Petitioner, to bid on the contract for the Project had a reasonable basis in fact and law, was made in good faith, and was not the product of any personal animus against Petitioner. A-1, Zurqui, and Grace were all MBEs with which
Ms. Lyons was professionally familiar, and they were on the list of interested and prequalified contractors the Department had compiled in the first solicitation. Ms. Lyons requested these
three contractors to submit bids only after obtaining proof of their then-current qualifications to work on the Project. She did not ask Petitioner or any of the other contractors on the previously compiled list, besides A-1, Zurqui, and Grace, to submit bids because, under Rule 60D-5.0073, Florida Administrative Code, the Department was not required to seek bids from any more than three contractors and time was of the essence. She had no sinister motive.
By asking only three contractors to submit bids,
Ms. Lyons limited competition for the contract, but she did so in a manner that was expressly authorized by Rule 60D-5.0073(3), Florida Administrative Code, and her actions did not result in the elimination of competition altogether. As contemplated by the rule, the three contractors asked to submit bids, A-1, Zurqui, and Grace, were afforded the opportunity to fairly compete for the contract. 13/ Under such circumstances, it cannot be said that the procurement process was flawed because it was "contrary to competition." See Medimpact Healthcare Systems, Inc., v. Department of Management Services, 2000 WL 1754859 (Fla. DOAH 2000)(Recommended Order)("The 'contrary to competition' standard in a competitive procurement involving bids requires that an agency 'secure fair competition on equal terms to all bidders by affording an opportunity for an exact comparison of bids.' Harry Pepper and Associates v. City of
Cape Coral, 352 So. 2d 1190 (Fla. 2d DCA 1977). Applying Harry
Pepper to this case requires that the agency secure fair competition on equal terms to all negotiators.").
In short, Petitioner has not shown that there is any valid reason to disturb the Department's determination to award the contract for the Project to A-1. 14/
Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby
RECOMMENDED that the Department issue a final order rejecting in its entirety Petitioner's protest of the Department's announced intention to award Contract E-6A14 to A-1.
DONE AND ENTERED this 5th day of June, 2001, in Tallahassee, Leon County, Florida.
STUART M. LERNER
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 5th day of June, 2001.
ENDNOTES
1/ In numbered paragraphs 6 through 16 of its Formal Written Protest, Petitioner discussed the first three solicitations.
2/ Petitioner did not contend in its "position" statement, as it did in its Formal Written Protest, that the "letting of a contract to repair the roof of FDOT's district warehouse located at the FDOT District 6 office complex" is governed by the requirements of Section 287.057(1), Florida Statutes.
3/ There being no reason not to do so, the undersigned has accepted the stipulations of fact contained in the parties' Joint Pre-Hearing Stipulation. See Gunn Plumbing, Inc. v. The Dania Bank, 252 So. 2d 1, 4 (Fla. 1971)("A stipulation properly entered into and relating to a matter upon which is appropriate to stipulate is binding upon the parties and the Court."); Johnson v. Johnson, 663 So. 2d 663, 665 (Fla. 2d DCA 1995)("[T]o foster the legal policy of encouraging stipulations to minimize litigation and expedite resolution of disputes, the law provides that '(s)uch stipulations should be enforced if entered into with good faith and not obtained by fraud, misrepresentation, or mistake, and not against public policy."); and EGYB, Inc. v.
First Union National Bank of Florida, 630 So. 2d 1216, 1217 (Fla. 5th DCA 1994)("Unless grounds for recission or withdrawal are shown, the trial court is bound to strictly enforce the agreement between the parties.").
4/ "Fixed capital outlay" is defined in Section 216.11(1)(p), Florida Statutes, as "the appropriation category used to fund real property (land, buildings, including appurtenances, fixtures and fixed equipment, structures, etc.), including additions, replacements, major repairs, and renovations to real property which materially extend its useful life or materially improve or change its functional use and including furniture and equipment necessary to furnish and operate a new or improved facility, when appropriated by the Legislature in the fixed capital outlay appropriation category."
5/ These "uniform rules of procedure" are found in Rules 28- 110.001, 28-110.002, 28-110.003, and 28-110.004, Florida
Administrative Code.
6/ "'As a general rule the comparative degree of proof by which a case must be established is the same before an administrative tribunal as in a judicial proceeding- that is, a preponderance of the evidence. It is satisfied by proof creating an
equipoise, but it does not require proof beyond a reasonable doubt.'" Florida Department of Health and Rehabilitative Services v. Career Service Commission, 289 So. 2d 412, 415 (Fla. 4th DCA 1974); see also Section 120.57(1)(j), Florida Statutes ("Findings of fact shall be based on a preponderance of the evidence, except in penal or licensure disciplinary proceedings or except as otherwise provided by statute. . . ."); cf. Board of Trustees of the Internal Improvement Trust Fund v. Levy, 656 So. 2d 1359, 1363 (Fla. 1st DCA 1995)("The burden of proving abuse of agency discretion is upon the challenger of the rule, who must meet that burden with a preponderance of the evidence").
7/ An "arbitrary" action is "one not supported by facts or logic, or [is] despotic." A "capricious" action is "one which is taken without thought or reason or [is] irrational[]." Agrico Chemical Co. v. Department of Environmental Regulation,
365 So. 2d 759, 763 (Fla. 1st DCA 1978); see also Board of Clinical Laboratory Personnel, v. Florida Association of Blood Banks, 721 So. 2d 317, 318 (Fla. 1st DCA 1998)("An 'arbitrary' decision is one not supported by facts or logic. A 'capricious' action is one taken irrationally, without thought or reason."); and Dravo Basic Materials Company, Inc., v. Department of Transportation, 602 So. 2d 632, 634 n.3 (Fla. 2d DCA 1992)("If an administrative decision is justifiable under any analysis that a reasonable person would use to reach a decision of similar importance, it would seem that the decision is [not] arbitrary.").
8/ This last sentence of Section 120.57(3), Florida Statutes, represents a codification of the holding in Department of Transportation v. Groves-Watkins Constructors, 530 So. 2d 912, 913 (Fla. 1988) that, where a state agency's decision to reject all bids/proposals is challenged, "the hearing officer's sole responsibility is to ascertain whether the agency acted fraudulently, arbitrarily, illegally, or dishonestly" in making its decision. (Pursuant to Chapter 96-159, Laws of Florida, the title of the undersigned and of all other Hearing Officers of the Division was changed to Administrative Law Judge, effective October 1, 1996.)
9/ This is similar to the deference that must be given by a reviewing court to the interpretation of a statute, ordinance, or rule by the agency responsible for its administration. See PW Ventures, Inc. v. Nichols, 533 So. 2d 281, 283 (Fla.
1988)("At the outset, we note the well established principle that the contemporaneous construction of a statute by the agency
charged with its enforcement and interpretation is entitled to great weight. . . . The courts will not depart from such a construction unless it is clearly unauthorized or erroneous."); Las Olas Tower Company v. City of Fort Lauderdale, 742 So. 2d 308,313 (Fla. 4th DCA 1999)("Generally, a reviewing court should defer to the interpretation given a statute or ordinance by the agency responsible for its administration. . . . Of course, that deference is not absolute, and when the agency's construction of a statute amounts to an unreasonable interpretation, or is clearly erroneous, it cannot stand."); and Amisub (North Ridge Hospital), Inc. v. Department of Health and Rehabilitation Services, 577 So. 2d 648, 649 (Fla. 1st DCA 1991)("[A]n administrative agency is afforded wide discretion in interpreting statutes which it administers. The agency's statutory construction is entitled to great weight, and is not to be overturned on appeal unless clearly erroneous.").
10/ At all times material to the instant case, Rule 60D-5.003, Florida Administrative Code, has provided:
Pursuant to the provisions of 60D-5.0073(4) and (5), the Agency shall publish an announcement in the "Florida Administrative Weekly" published by the Department of State, Division of Elections, Tallahassee, Florida 32399, available by subscription through the Division of Elections, providing a general description of each project requiring construction services and defining the scope of services to be provided. The form of announcement is suggested to be the "Form of Advertisement" form nos. S and R, revision date 2/99 and 2/99 respectively which are incorporated herein by reference. These forms may be obtained from the Division of Building Construction, Department of Management Services, Building 4030, Suite 335, 4050 Esplanade Way, Tallahassee, Florida 32399-0950. The announcement may also be published on the Florida Community Network at http://fcn.state.fl.us/dms/dbc/oppor1.html.
11/ At all times material to the instant case, Rule 60D-5.007, Florida Administrative Code, has provided as follows:
All projects except where competitive bidding is waived under the provisions of Rule 60D-5.008 will be publicly bid in accordance with the provisions in the project specifications bidding documents. Award of contract will be made to the responsive bidder, determined to be qualified in accordance with the provisions herein and meeting the requirements of the bidding documents, that submits the lowest valid bid for the work. The lowest bid will be determined as follows:
The lowest bid will be the bid from the responsive bidder that has submitted the lowest price for the base bid or the base bid plus the additive alternates or less the deductive alternates chosen by the Agency to be included in or excluded from the proposed contract, taken in numerical order listed in the bid documents. The order of the alternates may be selected by the Agency in any sequence so long as such acceptance out of order does not alter the designation of the low bidder.
On projects whose bidding documents provide for evaluation of the bids based on first cost and life cycle cost and performance criteria, the lowest bid will be the bid by the firm whose bid products are determined to yield the lowest total cost in accordance with the criteria set forth in the bidding documents.
12/ Having opted to submit a bid in response to the Notice of Informal Bid, rather than file a timely protest contesting its provisions, Petitioner waived its right to initiate such a challenge. See Section 120.57(3)(b), Florida Statutes ("With respect to a protest of the specifications contained in an invitation to bid or in a request for proposals, the notice of protest shall be filed in writing within 72 hours after the receipt of notice of the project plans and specifications or intended project plans and specifications in an invitation to bid or request for proposals, and the formal written protest shall be filed within 10 days after the date the notice of protest is filed. Failure to file a notice of protest or
failure to file a formal written protest shall constitute a waiver of proceedings under this chapter."); see also Optiplan, Inc. v. School Board of Broward County, 710 So. 2d 569, 572 (Fla. 4th DCA 1998)("[W]ith respect to the constitutional challenge to the RFP's specifications because it awarded points tied to race-based classifications, we agree with the hearing officer that Optiplan waived its right to contest the School Board's use of the criteria by failing to formally challenge the criteria within 72 hours of the publication of the specifications in a bid solicitation protest. The purpose of such a protest is to allow an agency to correct or clarify plans and specifications prior to accepting bids in order to save expense to the bidders and to assure fair competition among them."); Capeletti Brothers, Inc. v. Department of Transportation, 499 So. 2d 855, 857 (Fla. 1st DCA 1987)("The evidence reflects that Capeletti had the plans and specifications at least two weeks prior to the bid-letting and failed to make any objection to the contract goals. The purpose of the bid solicitation protest provision is to allow an agency, in order to save expense to the bidders and to assure fair competition among them, to correct or clarify plans and specifications prior to accepting bids. A failure to file a timely protest constitutes a waiver of chapter 120 proceedings."); U.S. Foodservice, Inc. v. School Board of Hillsborough County, 1998 WL 930094 (Fla. DOAH 1998)(Recommended Order)("Section 120.57(3)(b) establishes the duty to challenge specifications when the ITB is issued, not after the award. If the protestor fails to file its protest in a timely fashion after the issuance of the ITB, the protestor waives its right to challenge the specifications."); Advantage Services of South Florida, Inc. v. Department of Management Services, 1996 WL 1060082 (Fla. DOAH 1996)(Recommended Order)("The thrust of the petition filed in this case is a challenge to the specification that required a manufacturer's certification for equipment bid. Petitioner failed to timely raise a challenge to this requirement and is barred from incorporating such challenge in the instant case."); Great Atlantic Boiler Services, Inc. v.
Department of Corrections, 1992 WL 881152 (Fla. DOAH 1992)(Recommended Order)("[T]o the extent petitioner may disagree with the specifications in the ITB, by failing to timely file a protest to the specifications, it waived its right to do so."); Winchester Properties v. Department of Transportation, 1990 WL 749626 (Fla. DOAH 1990)(Recommended Order)("[T]o the extent that Petitioner seeks to show that there was no rational basis for the weighting of the evaluation criteria used by the Department, particularly the allotting of only a total of 30 points for the cost factor, that challenge is
untimely. Any challenge a bidder has to the relative weighting of various review criteria must be made within 72 hours of the time the RFP is issued, not when an intended award has been noticed. . . . Thus, any contention the Petitioner has concerning the weighting of the various evaluation criteria is untimely and has been waived."); Jones Floor Covering, Inc. v. Department of General Services, 1990 WL 749297 (Fla. DOAH 1990) (Recommended Order)("Jones Floor failed to file a timely protest when bids were solicited, and raised no question about the specifications with which it did not comply, until after the bids were opened and the agency's intention to award to another bidder was announced. Because no bidder followed '[t]he proper procedure for contesting [a bid specification] . . . by filing a bid solicitation protest within seventy-two hours of receipt of the project plans and specifications,' . . . questions about the propriety and wisdom of particular specifications are no longer open. . . . Because the requirements appear in the specifications and because no timely protest was made to the specifications, they are conclusively established as criteria for evaluating the bids."); and Apolinar v. Professional Construction Services, 663 So. 2d 17, 19 (La. 1995), wherein the Supreme Court of Louisiana stated the following:
We granted certiorari in the present case to decide whether our holding in the Calcasieu decision requires a conclusion that the inclusion of any provision relating to wages in the bid specifications for a public works contract constitutes a violation of the Public Bid Law, even if the provision does not fix a minimum wage. Upon reviewing the record on certiorari, however, we conclude that PCS is not entitled to raise this issue. PCS did not qualify its bid or in any manner object to the provision prior to the time of bidding. Nor did PCS file a declaratory judgment action to have this term of the bid specifications declared invalid. Rather, PCS submitted an unqualified bid to perform the work in accordance with the specifications, as did every other bidder on the project.
Some states have enacted procedures for protesting bid requirements, recognizing that it is necessary for a bidder to protest timely any objectionable provision in bid
specifications in order to allow the public body an opportunity to correct or clarify the specifications at a time when correction or clarification will be meaningful to all bidders. But even in the absence of a statutory procedure, requiring timely objections assures fair competition among bidders by having the same specifications apply to all bids.
We therefore conclude that PCS has waived any objections to the terms of the bid specifications and cannot now be heard to say that it need not pay the overtime wages that every bidder agreed to pay when the bids were submitted. While PCS perhaps may question the validity of the pertinent provision by protesting timely in bidding on future projects or by filing a declaratory judgment action if such a provision regularly is included in the District's bid specifications for public works projects, the validity of the provision in the contract bid upon and entered into by PCS long ago is no longer subject to challenge.
13/ Neither Zurqui nor Grace protested the Department's announced intention to award the contract to A-1.
14/ Given that Petitioner's protest of the Department's proposed contract award to A-1 lacks merit, it is unnecessary to, and therefore the undersigned will not, address the issue of Petitioner's standing to initiate such a protest. See E. M. Watkins & Co., Inc. v. Board of Regents, 414 So. 2d 583 (Fla.
1st DCA 1982)("Our resolution of this and the other issues disposes of our need to address the question of whether Watkins itself had standing to contest BOR's award of the contract.").
COPIES FURNISHED:
Daniel Te Young, Esquire Smith, Currie & Hancock
1004 DeSoto Park Drive, Suite 600-A Tallahassee, Florida 32301
Brian A. Crumbaker, Esquire Department of Transportation 605 Suwannee Street
Haydon Burns Building, Mail Station 58 Tallahassee, Florida 32399-0458
James C. Myers, Clerk of Agency Proceedings Department of Transportation
605 Suwannee Street
Haydon Burns Building, Mail Station 58 Tallahassee, Florida 32399-0458
Pamela Leslie, General Counsel Department of Transportation 605 Suwannee Street
Haydon Burns Building, Mail Station 58 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.
| Issue Date | Document | Summary |
|---|---|---|
| Jul. 05, 2001 | Agency Final Order | |
| Jun. 05, 2001 | Recommended Order | Department of Transportation followed appropriate procedures in soliciting bids for the construction of a new roof on its District VI warehouse. |
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