STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION Haydon Burns Building 605 Suwannee Street Tallahassee, Florida ASHPALT PAVING SYSTEMS, INC., a Corporation organized under the laws of New Jersey, Petitioner, v. DOT CASE NO.: 18-017 STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION, Respondent. : / FINAL ORDER On March 27, 2018, Asphalt Paving Systems, Inc., (APS) filed a Petition and Demand for Stay (Petition for Stay) citing to Sections 120.569 and 120.57(2), Florida Statutes, and Florida Administrative Code Rule 28-106.301 et seq., Florida Administrative Code; and an Emergent Motion for Stay of Work (Motion for Stay) citing to Section 120.57(3)(c), Florida Statutes, and Florida Administrative Code Rule 28-106.303. The APS Petition for Stay and Motion for Stay relate to the Department of Transportation’s (Department) February 19, 2018 Supplemental Agreement to an existing District Three Maintenance Contract that was previously competitively procured and awarded to Anderson Columbia (Anderson) on June 8, 2016, APS Amended Petition, Ex. 9. The Supplemental Agreement includes the same existing work types as the 2016 contract. The Supplemental Agreement increased the 2016 contract amount ceiling and was in response to nearby resident’s complaints about the noise from cars driving over the depressed rumble strips. Page 1 of 8 On April 11, 2018, the Department issued an Order of Dismissal Without Prejudice (Order of Dismissal) ordering APS to file a response to the deficiencies noted within the order. On April 20, 2018, APS filed an Amended Petition for Agency Review (Amended Petition) and the Civil Action Affidavit of Thomas Donald. The relief now sought by APS is twofold: it demands an administrative hearing where it requests that all “Work” described as part of the Supplemental Agreement between Anderson and Respondent be removed from the maintenance contract; and that the Work be put out for public bidding. APS no longer seeks relief in the form of a Petition for Stay or Motion for Stay,' rather it alleges that a dispute of material fact exists and that the case must be transferred to the Division of Administrative Hearings (DOAH). Amended Petition The APS Petition for Stay was filed pursuant to Sections 120.569, and 120.57(2), Florida Statutes, and was the subject of the Department’s Order of Dismissal. The Amended Petition is filed pursuant to Sections 120.569(1) and 120.57(1), Florida Statutes, and Florida Administrative Code Rule 28-106.303. A petition or request for hearing shall include those items required by the uniform rules adopted pursuant to Section 120.54(5)(b), Florida Statutes. Upon receipt of a petition, the Department shall carefully review the petition to determine if it contains all the required information. Thereafter, a petition shall be dismissed if it is not in substantial compliance with these requirements or has been untimely filed. Section 120.569(2)(c), Fla. Stat. 1 On April 5, 2018, APS filed an Emergent Petition for Writ of Mandamus and Emergency Motion for Stay with the District Court of Appeal, First District, which was granted on April 13, 2018. The court directed the Department to stay further work under the February 19, 2018 Supplemental Agreement, until the administrative protest is resolved by final agency action. APS Amended Petition, Ex.1. Page 2 of 8 A request for hearing must contain those items required by the uniform rules adopted pursuant to Section 120.54(5)(b), Florida Statutes, and Florida Administrative Code Rules 28- 106.201, and 28-106.301: (a) The name and address of each agency affected and each agency’s file or identification number, if known; (b) The name, address, and telephone number of the petitioner; the name, address, and telephone number of the petitioner’s representative, if any, which shall be the address for service purposes during the course of the proceeding; and an explanation of how petitioner’s substantial interests will be affected by the agency determination; (c) A statement of when and how the petitioner received the Department’s notice of intended action; (d) A statement of all disputed issues of material fact. If there are none, the petition must so indicate; (e) A concise statement of the ultimate facts alleged, including the specific facts the petitioner contends warrant reversal or modification of the agency’s proposed action; (f) A statement identifying any rules or statutes that are relied upon to support opposition to the action to be taken under the department’s notice of intended action; and (g) A statement of the relief sought, stating precisely the action the petitioner wishes the department to take with respect to the department’s proposed action. The Amended Petition does not provide sufficient information to demonstrate (b) how petitioner’s substantial interests will be affected by the agency action or (f) how the rules or statutes support its request. Substantial Interests APS cites to Agrico Chemical Co. v. Department of Environmental Regulation, 406 So.2d 478 (Fla. 2d DCA 1981), and the two-part test enunciated therein in support of its assertion that its Page 3 of 8 substantial interests are affected by the Department’s supplementation of the pre-existing contract. To establish that it is entitled to administrative review of an agency action under Sections 120.569 and 120.57, Florida Statutes, a petitioner must show (1) the proposed action will result in an injury- in-fact which is of sufficient immediacy to justify a hearing; and (2) the injury is of the type that the statute pursuant to which the agency has acted is designed to protect. Id. The first prong of the Agrico test deals with the “degree of injury,” whereas the second prong “deals with the nature of the injury.” Id. To prove that it is entitled to maintain an administrative proceeding, APS has to satisfy both prongs. At is core, APS’s Amended Petition seeks an administrative hearing to challenge the Department’s decision to supplement an existing and previously competitively procured contract. APS does not seek to challenge the original procurement. APS is attempting to utilize the Chapter 120 process for administrative review of agency actions to preclude the Department from amending a maintenance contract that was competitively procured in 2016 and compel the Department to procure the work that was the subject of the amendment through a new competitive procurement pursuant to Section 337.11, Florida Statutes. APS contends that the Department’s decision to not conduct a second competitive procurement for the additional work wrongfully deprived APS of a second point of entry to administratively challenge the Department's action. This is fundamentally an argument that the Department’s decision to supplement the existing contract instead of offering APS (and presumably other qualified potential proposers) an opportunity to separately bid for the work caused APS an injury-in-fact which is of sufficient immediacy to justify an administrative hearing and which is the type of injury that section 337.11 is designed to protect. However, the injury APS complains of is purely economic, to wit: the lost profits it might have obtained if the Department had conducted a separate procurement and if APS had been the successful bidder for such work in the separate procurement. Page 4 of 8 The Anderson Districtwide Maintenance Contract was awarded on June 8, 2016, pursuant to a competitive bid solicitation process. The procurement was not challenged. The Department is permitted by Florida law to supplement the work in an existing contract pursuant to Section 337.11(9), Florida Statutes. The Department is permitted to use supplemental agreements to any Section 337.11, Florida Statutes procured contract which can be used “to provide for unforeseen work, grade changes, or alterations in plans which could not reasonably have been contemplated or foreseen in the original plans and specifications; to change the limits of construction to meet field conditions; to provide a safe and functional connection to an existing pavement; to settle contract claims; and to make the project functionally operational in accordance with the intent of the original contract.” Section 337.11(9)(a)(b), Fla. Stat. The Department’s decision to supplement the contract was in accordance with this provision. APS’s alleged potential economic injury is insufficient to afford standing under the injury in fact analysis. Like the law at issue in Agrico, section 337.11(9) was not meant to provide redress or prevent injuries to a competitor’s profit and loss statement. See, Agrico at 482; Shared Services. Inc. v. State Dept. of Health and Rehabilitative Services, 426 So.2d 56 (Fla. lst DCA 1983) (there is no statutory authority: for making competitive economic injury a concern in the issuance of certificates under Chapter 381). APS claimed injury-in-fact is completely speculative as it can make no showing that even if the Department chose to separately procure the work that was the subject of the supplemental agreement that it would be the successful bidder. As such, APS has not demonstrated any injury- in-fact that would entitled it to administrative review. Page 5 of 8 Additionally, Florida law is clear that jurisdiction to interpret contracts is vested solely in the judiciary. Peck Plaza Condominium v. Division of Florida Land Sales and Condominiums. Dept. of Business Regulation, 371 So.2d 152, 153, 154, (Fla. lst DCA 1979). Even if APS were able to demonstrate an actual injury-in-fact, and one that the statute under which the Department acted was intended to protect against, its fundamental claim still is that the additional work added to the contract by the supplemental agreement exceeds the authority provided in section 337.11(9). APS’s argument that a second procurement was required because the additional work did not fall within the allowable scope for a supplemental agreement requires an interpretation of the original contract, which interpretation cannot be made through a Chapter 120 administrative proceeding. Conclusion APS lacks standing under Chapter 120, Florida Statutes, to challenge the Department’s decision to enter into the February 19, 2018 Supplemental Agreement to the existing District Three Maintenance Contract previously competitively procured and awarded to Anderson Columbia (Anderson) on June 8, 2016. Further, the relief requested by APS is not available in a Chapter 120 administrative proceeding. Page 6 of 8 Based on the foregoing, it is ORDERED that the Department has determined that Asphalt Paving Services, Inc., has not established its substantial interests are affected by the Department’s action of which it complains; and ORDERED that the relief requested by Asphalt Paving Services, Inc., is not available in an administrative proceeding pursuant to Chapter 120, Florida Statutes; and ORDERED that Asphalt Paving Systems Inc.’s, Amended Petition for Agency Review is dismissed. ee DONE AND ORDERED this i day of May, 2018. Wh gard 2°35 | 1" ‘ | fe ja & t pe ike Dew Secretary Department of Transportation 605 Suwannee Street Haydon Burns Building Tallahassee, Florida 32399-0458 Page 7 of 8 NOTICE OF RIGHT TO APPEAL THIS ORDER CONSTITUTES FINAL AGENCY ACTION AND MAY BE APPEALED PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND RULES 9.110 AND 9.190, FLORIDA RULES OF APPELLATE PROCEDURE, BY FILING A NOTICE OF APPEAL CONFORMING TO THE REQUIREMENTS OF RULE 9.110(d), FLORIDA RULES OF APPELLATE PROCEDURE, BOTH WITH THE APPROPRIATE DISTRICT COURT OF APPEAL, ACCOMPANIED BY THE APPROPRIATE FILING FEE, AND WITH THE DEPARTMENT’S CLERK OF AGENCY PROCEEDINGS, HAYDON BURNS BUILDING, 605 SUWANNEE STREET, MS-58, TALLAHASSEE, FLORIDA 32399-0458, WITHIN 30 DAYS OF RENDITION OF THIS ORDER. Copies furnished to: Richard E. Shine, Esquire Assistant General Counsel Department of Transportation Haydon Burns Building 605 Suwannee Street, M.S. 58 Tallahassee, Florida 32399 Amy R. Weintrob, Esq Hankin Sandman Palladino & Weintrob 30 S. New York Avenue Atlantic City, New Jersey 08401 E-mail: amyr@hankinsandman.com Attorney for Petitioner Page 8 of 8

Docket for Case No: 19-001281