On April 16 and May 4, 2021, Administrative Law Judge Hetal Desai, of the Division of Administrative Hearings (DOAH), conducted a final hearing in this matter via Zoom.
For Petitioner: Megan S. Reynolds, Esquire
William Robert Vezina, III, Esquire Vezina, Lawrence & Piscitelli, P.A. 413 East Park Avenue
Joseph W. Lawrence, Esquire Vezina, Lawrence & Piscitelli, P.A.
Whether the Florida Department of Transportation's determination that Heavy Civil, Inc., was a nonresponsive bidder was contrary to the agency's governing statutes, rules, policies, or the solicitation specifications; and, if so, whether the award was clearly erroneous, contrary to competition, arbitrary, or capricious.
Respondent, Florida Department of Transportation (Department or FDOT), posted an advertisement for an Invitation to Bid (ITB) for Contract number T4557 (Notice). On December 16, 2020, the Department issued a Notice of Intent to award the subject contract to Russell Engineering, Inc. (Russell Engineering).
Petitioner, Heavy Civil, Inc. (Heavy Civil), timely filed its Notice of Protest on December 3, 2020. On December 11, 2020, Heavy Civil timely filed its Formal Written Protest (protest) with the Department. On March 16, 2021, the Department forwarded Heavy Civil's protest to DOAH for assignment to an Administrative Law Judge (ALJ) to conduct a chapter 120 evidentiary hearing.
A telephonic scheduling conference was held on March 19, 2021, via Zoom.
Thereafter, the matter was set for a final hearing. The Department filed a Motion to Relinquish Jurisdiction on April 13, 2021, and Heavy Civil filed its opposition to that motion on April 15, 2021. The parties presented argument on the first day of the final hearing, and the motion was denied for reasons stated on the record.
The Department filed a Second Motion to Relinquish Jurisdiction on April 28, 2021 (after the first day of the final hearing, but before the second
day). In response, Heavy Civil filed a Response in Opposition to FDOT's Second Motion to Relinquish and a Motion for Official Recognition on May 3, 2021. The parties presented argument on the Department's Second Motion to Relinquish Jurisdiction on the second day of the final hearing, and it was denied for reasons stated on the record. The Motion for Official Recognition was also denied for reasons stated on the record.
The parties submitted a Joint Pre-Hearing Stipulation (Stipulation) and joint exhibits on April 14, 2021. In the Stipulation, the parties agreed to 45 facts that would not require proof at the hearing. Those stipulated facts are incorporated where appropriate in this Recommended Order.
At the final hearing, Heavy Civil presented the testimony of Rudolph "Rudy" Polselli, Tiffany Kester, Warren Alter, Darryle Ward,
Maurice Pompey, and Cassandra Anderson. The Department presented the testimony of Jennifer "Heaven" Burnsed, Mirza Rezazadeh, Renasia Scott, Phillip Davis, and Alan Autry. Joint Exhibits 1 through 16 were admitted into evidence. Heavy Civil's Exhibits P5, P9, P10, P17 through P19, P24, P25, P27, P29, P30, and P32 were admitted into evidence. The Department's Exhibits R1, R4 through R6, R10, R12, R20 through R24, and R30 were admitted into evidence.
The Transcript of the hearing was filed with DOAH on May 18, 2021. The undersigned granted the parties additional time to file proposed recommended orders (PROs) as requested by a Joint Motion for Extension of Time to Submit PROs and the Department's Unopposed Motion for Extension of Time to Submit PROs.1 Both parties timely filed their PROs on June 18,
1 By jointly requesting and then agreeing to an extension, the parties waived the requirement in section 120.57(3)(e), Florida Statutes (2020), for entry of a recommended order within 30 days of the filing of the transcript. Fla. Admin. Code R. 28-106.216(2).
2021, and both have been duly considered in the preparation of this Recommended Order.
All references to the Florida Statutes and Florida Administrative Code are to the 2020 versions.
Heavy Civil is a civil construction firm that primarily contracts with public entities for projects involving roads, underground utilities, site development, and/or placement of asphalt or concrete. It regularly submits bids to FDOT and has been awarded FDOT bids.
Mr. Polselli is Heavy Civil's Operation Manager and handles the day-to- day operations. During the time relevant to these proceedings he was responsible for estimating and bidding for ITBs, and overseeing the construction projects awarded to Heavy Civil.
Tiffany Kester was Heavy Civil's Office Manager and worked for
Mr. Polselli. There is no dispute that Mr. Polselli delegated the submission of the documentation at issue in this proceeding to Ms. Kester.
The Department is an executive agency of the State of Florida responsible for coordinating the planning of a safe, viable, and balanced state transportation system serving all regions of Florida. § 334.044(1), Fla. Stat.
Pursuant to section 334.046(2), Florida Statutes, FDOT is tasked with providing a safe statewide transportation system that ensures the mobility of people and goods, enhances economic prosperity, and preserves the quality of Florida's environment and communities. To achieve these tasks, the Department has the authority to enter contracts for the construction and maintenance of all roads under its jurisdiction. § 337.11(1), Fla. Stat.
The Contracts Administration Office (CAO) oversees this aspect of FDOT's responsibilities. Relevant to these proceedings, the CAO handles the
prequalification process for road and bridge contractors seeking to bid on contracts with prices exceeding $250,000.
For purposes of these proceedings, the parties have stipulated that the terms "Department" and "Contracts Administration Office" do not have the same meaning and are not used interchangeably to refer to the same entity. The parties have stipulated that the term "Department" means the Central Office located at 605 Suwannee Street, Tallahassee, Florida 32399; and the term "Contracts Administration Office" means a specific office housed within Central Office and located specifically at 605 Suwannee Street, Mail Stop (MS) 55, Tallahassee, Florida 32399.
THE NOTICE AND INSTRUCTIONS FOR THE INVITATION TO BID
On September 25, 2020, FDOT issued the Notice for an ITB for Contract T4557, which involved a construction project for road improvements in Palm Beach County. Specifically, the work to be performed was along Hall Boulevard, Temple Boulevard, and 140th Avenue, and included road widening, milling, and resurfacing; concrete, pavers, and asphalt; signing and pavement markings; monitoring existing structures; irrigation sleeves; and utility adjustments.
Bid proposals for Contract T4557 were required to be submitted electronically by a time and date certain as provided in the Notice. As part of their proposals, bidders were required to submit a proposal guaranty, commonly referred to as a "bid bond."2 This is statutorily required for all Department ITB responses over $150,000. § 337.17, Fla. Stat.
Regarding the "bid bond," the Notice stated:
For bids over $150,000, the standard proposal guaranty of 5% of the bid will be required, unless otherwise stipulated in the proposal advertisement.
… Proposal Guaranty shall substantially conform to DOT Form 375-020-09 furnished with the
2 The parties stipulated that, as used in this protest proceeding, the terms "proposal guaranty" and "bid bond" have the same meaning and may be used interchangeably to refer to the same item.
Proposal. Surety2000 or SurePath electronic Proposal Guaranty submittal may be used in conjunction with Bid Express internet bid submittal. ... Paper Proposal Guaranty will also be accepted for bids submitted through Bid Express provided they are received prior to the deadline for receiving bids, by the location(s) identified in this Bid Solicitation Notice. If an electronic proposal guaranty is not being submitted, the bidder must submit an original proposal guaranty. (A fax or a copy sent as an attachment will not be accepted). (italics added).
In summary, the Notice required the proposal guaranty to be submitted either (1) electronically through the form and website indicated; or
(2) by a paper original delivered to the location identified in the Notice bid on or before the proposal deadline. Neither a faxed copy of the paper bid bond nor a copy sent as an email attachment would be accepted.
Additionally, Specification 2-7 of the Department's "Standard Specifications for Road and Bridge Construction" provides:
2-7 Guaranty to Accompany Proposals.
The Department will not consider any Proposal unless accompanied by a Proposal Guaranty of the character and amount indicated in the Advertisement, and unless made payable to the Florida Department of Transportation.
Heavy Civil bid $590,894.30 on Contract T4557, and thus it was required to submit the appropriate bid bond either electronically or by paper according to the terms of the Notice. At issue in these proceedings is whether Heavy Civil submitted its paper proposal guaranty so that it was received "prior to the deadline for receiving bids, by the location identified in this Bid Solicitation Notice." For the reasons below, the undersigned finds Heavy Civil's proposal did not comply with this requirement.
If a bidder were to read the Notice, it would see that FDOT identified the following location on the very top of the first page:
Additionally, the Notice had at least six references to the CAO website, http://www.fdot.gov/contracts. If a bidder were to read the Notice and click on this link from the Notice, it would see the following information:
See Florida Department of Transportation, Contracts Administration webpage
at http://www.fdot.gov/contracts (last visited July 13, 2021).
According to the original Notice, the bid and the bid bond were due no later than 10:30 a.m., on October 28, 2020. FDOT issued two addendums for Contract T4557, extending the final submittal date to 10:30 a.m. on November 18, 2020.
HEAVY CIVIL'S SUBMISSION
The parties stipulated to most of the facts regarding Heavy Civil's submission of its proposal to the CAO. Mr. Polselli was primarily responsible for submitting Heavy Civil's proposals in response to ITBs.
In this case, Mr. Polselli submitted Heavy Civil's electronic bid proposal for Contract T4557 through the Bid Express link at 9:16 a.m. on November 18, 2020. The proposal indicated that Heavy Civil separately submitted a paper proposal guaranty, but did not indicate where the paper proposal was submitted, to whom it was submitted, or the date that it was submitted.
Approximately, three weeks before electronically submitting the actual bid proposal, Mr. Polselli called Ms. Kester to let her know a paper bid bond would be arriving at Heavy Civil's office and that she should send the bid bond to the Department in Tallahassee. Ms. Kester received the paper bid bond.3
Mr. Polselli did not provide Ms. Kester with an address for mailing the bid bond. He did not provide her with the Notice. Ms. Kester did review pages 29 and 30 of the Notice. These pages, however, describe the specifications of the proposed project. There is no reference to "bid bond" on these pages, nor do they include a location or mailing address. Instead, page 29 states, "Please read the full advertisement."
Ms. Kester did not review the full advertisement. No one at Heavy Civil referred to the Notice or clicked on any of the links provided in the Notice to determine where to send the paper bid bond.
Ms. Kester was familiar with the CAO and had corresponded via email and telephone with CAO staff. For example, on November 5, 2019,
Jennifer Burnsed, sent an email to Mr. Polselli and Ms. Kester regarding the execution of another contract (Contract T1766). Ms. Burnsed's email signature block states the following in large font:
3 As addressed during the hearing and in the Department's PRO, the bid bond notary certificate has the wrong date. The date the bid bond was notarized is immaterial to the issues in these proceedings.
Jennifer (Heaven) Burnsed
FDOT, Contracts Administration Office 605 Suwannee Street, Mail Station 55
Tallahassee, Fl 32399 850-414-4027 Jennifer.Burnsed@dot.state.fl.us
Similarly, Renasia Scott with the CAO also corresponded through email with Ms. Kester and Mr. Polselli to facilitate the award and execution of a contract. Ms. Scott's email signature block reads:
Renasia Scott
Contracts Administration Office, MS-55 Florida Department of Transportation (850) 414-4015
(850) 414-4947 - Fax
renasia.scott@dot.state.fl.us
Ms. Kester did not refer to the Notice or the addresses on the signature blocks of the CAO staff when submitting the paper bid bond for Contract T4557. Rather, Ms. Kester "googled" (ran a term through the Google internet search engine) "DOT Tallahassee" and came up with the FDOT Central Office building's address: 605 Suwannee Street, Tallahassee, FL 32399. She used this address to fill out the Federal Express package slip as illustrated below:
As is apparent from the label above, the Federal Express package containing Heavy Civil’s bid bond did not include a recipient's name nor did it contain the Mail Stop number for the CAO. It did not have the "MS 55"
designation listed on the Notice and on the CAO website referred to in the Notice.
On October 22, 2020, Federal Express picked up the package prepared by Ms. Kester containing Heavy Civil's bid bond from Heavy Civil's office in Pompano Beach, Florida.
Neither Ms. Kester nor Mr. Polselli took any steps to verify that the paper bid bond was received by the CAO. It is unclear if Mr. Polselli knew or should have known that Ms. Kester had sent the bid bond in an envelope that did not contain the "MS 55" designation on the label.
THE MAILROOM
The Department's mailroom is located in the Central Office building on Suwannee Street in Tallahassee, Florida. It receives between 250 and 350 pieces of mail and packages per day.
It is the mailroom staff's duty to deliver mail and packages to the 40 different offices in the Department's Suwannee Street building. Each
FDOT office has a Mail Stop number indicated by "MS xx". The mail staff is not trained in contracts nor do they receive training in identifying bid bonds.
The Federal Express package arrived at the Department building in Tallahassee at approximately 11:06 a.m. on October 27, 2020. On this date, Heavy Civil had yet to submit its bid proposal for Contract T4557. Additionally, the Federal Express package was not specifically addressed to the CAO and did not include the Mail Stop number for the CAO.
The testimony at the hearing established that if the Federal Express label had a reference to the CAO, a Mail Stop number, or the name of a CAO employee, the mailroom staff would have known what to do with the package and would have delivered it to the CAO.
However, because the package was not addressed to anyone in particular, the Department's mailroom staff had to open the Federal Express package and determine to what office in the Department it should be delivered.
Because of the stay-home order in place for COVID-19, on October 27, 2020, there was limited staff in the Department's building on Suwannee Street. According to the testimony, only a quarter of the Department's staff were working on-site, with the rest presumably working remotely.
The Federal Express package indicates it was accepted and signed for by "M. Bryan" on October 27, 2020. The testimony at the hearing established that no employee in the Department's mailroom could be identified as
"M. Bryan."
Regardless, Darryle Ward, a senior mail clerk at FDOT, eventually received Heavy Civil's Federal Express on October 27, 2020. Because he did not have the authority to open it, Mr. Ward took the package to a supervisor, Maurice Pompey.
Mr. Pompey opened the Federal Express package. Because it did not have a cover letter, was not addressed to a specific person, was not addressed to a specific FDOT office, and did not have an "MS" number, he looked at the document contained in the package and determined it was a bond.
Mr. Pompey believed the document in the Federal Express package was a bond for a contract award and did not realize it was a proposal guaranty. Based on his belief it was a bond for an already awarded contract, he determined it should go to the Department's Procurement Office.
THE PROCUREMENT OFFICE
The Procurement Office procures road and bridge construction materials and services, and other products or services related to the maintenance of roads, bridges, or other transportation facilities, as well as supplies and services that support the day-to-day operations of the agency.
The mailroom staff delivered Heavy Civil's Federal Express package to the Department's Procurement Office on October 27, 2020, at approximately 11:40 a.m. The mailroom staff logged the information from the Federal Express envelope and where it was delivered into the Department's mail tracking system.
At the time (again because of the COVID-19 pandemic), most of the Procurement Office employees were teleworking.4 Vincent Moore, a purchasing agent who had been working for the Procurement Office for less than two months, signed for Heavy Civil's Federal Express package.
Mr. Moore's normal job duties included handling purchase requisitions through "My Florida Marketplace," but as the only one not working remotely, on October 27, 2020, he was also responsible for receiving the mail for the Procurement Office.
Mr. Moore received the Federal Express envelope. He had never seen a document like the paper bid bond in the Federal Express package and candidly testified that he had no idea what it was.
Mr. Moore called a staff member who had 16 years of experience with the Procurement Office, Cassandra Anderson. He emailed a copy of the Federal Express package and the bid bond to her as they were speaking on the phone. She noticed the Federal Express label was not addressed to a specific person or office.
Regarding the document inside the package, Ms. Anderson had received similar forms in the past from vendors (not bidders) who were required to submit a bond to the Procurement Office and simply used the wrong form. The Procurement Office accepted vendor and contract bonds as long as they substantially complied with the Procurement Office's requirements even if they were not on the right form. Based on her experience, she believed the document was from a vendor and was intended for the Procurement Office.
Ms. Anderson advised Mr. Moore to keep Heavy Civil's Federal Express package because she believed a Procurement Office employee who was waiting for the bond would ask Mr. Moore about it since he was
4 Normally, had there not been a public health pandemic, the handling of mail within the Procurement Office would have been the job of Kelly Walls. Ms. Walls, however, was not in the office on October 27, 2020.
accepting the mail. This was reasonable, especially since Heavy Civil had been a vendor with the Department on other construction contracts.
Again, if the Heavy Civil Federal Express envelope had mentioned the CAO name, a Mail Stop number, or the name of an employee, Mr. Moore and Ms. Anderson would have known what to do with the package.
Ms. Anderson was correct that eventually someone would ask about the document in the Federal Express envelope, but mistaken that it would be someone from the Procurement Office. Until December 3, 2020, the bid bond sent by Heavy Civil in the Federal Express package remained in the Procurement Office.
THE CAO
The CAO received Heavy Civil's electronic bid proposal on or before 10:30 a.m. on November 18, 2020. The proposal did not contain an electronic bid bond but did indicate that Heavy Civil was utilizing the paper bid bond method.
A bidder not submitting a bid bond is relatively infrequent but does happen. Of the 150 to 200 ITBs handled annually by the CAO, approximately six of the proposals fail to submit a bid bond. According to the testimony at the hearing, this could be because the bidder failed to follow up or because it was unable to obtain a bond from a surety. In these situations, where a proposal is not accompanied by a bid bond, the proposal is deemed unresponsive.
On December 1, 2020, as noticed in the last addendum for Contract T4557, the Department held its Technical Review Committee (TRC) meeting. On December 2, 2020, the Department held its Contracts Award Committee (CAC) meeting. Both meetings were conducted via an internet platform that
allowed participation via computer, tablet, smartphone, or telephone. The meetings were open to the public and the dates of the meetings and information on how to attend were posted on the CAO's website.
Bidders and members of the public had the right and the opportunity to speak at both meetings.
On December 1, 2020, the TRC determined that there were eight bidders for Contract T4557. It voted to determine Heavy Civil's proposal nonresponsive "due to not submitting a bid bond."
Heavy Civil did not attend the TRC meeting.
On December 2, 2020, the CAC convened to award Contract T4557. It concurred with the TRC's determination that Heavy Civil's proposal was nonresponsive. It awarded the contract to Russell Engineering, who had submitted a proposal cost of $645,875.25.
Heavy Civil did not attend the CAC meeting.
On December 2, 2020, the Department posted notice of its intent to award Contract T4557 to Russell Engineering, finding it the lowest responsive bidder.
Had Heavy Civil attended either meeting, it could have informed the committee members that it had sent a paper bid bond and that there had been some kind of mistake. At that point, CAO's employees could have searched for it and might have either delayed the final determination or overturned the decisions by the TRC and CAC.
POST AWARD
The next day, on December 3, 2020, Mr. Polselli saw the posted notice of the CAO's intent to award Contract T4557. He immediately telephoned the CAO and inquired why Heavy Civil's bid was deemed nonresponsive. He spoke with Mirza Rezazadeh, who told Mr. Polselli that the CAO had not received Heavy Civil's proposal guaranty by 10:30 am. on November 18, 2020.
Mr. Polselli immediately emailed Mr. Rezazadeh with a copy of its proposal guaranty and copies of the Federal Express records attached to the email.
Mr. Rezazadeh began investigating Mr. Polselli's claims, and within 30 minutes the CAO determined that Heavy Civil's proposal guaranty had been delivered by Federal Express to the mailroom on October 27, 2020.
The parties stipulated that other than the fact the proposal guaranty was not received by the CAO on or before 10:30 a.m. on November 18, 2020, Heavy Civil's proposal guaranty met all solicitation requirements in the Notice and all legal requirements. The parties have also stipulated that the Department does not contend that Heavy Civil's bid (excluding the proposal guaranty) was nonresponsive.
ULTIMATE FINDINGS OF FACT
To be considered responsive, the paper bid proposal guaranty submitted for Contract T4557 must have been received by the CAO at 605 Suwannee Street, MS 55, Tallahassee, Florida 32399, on or before 10:30 a.m. on November 18, 2020. This is based on section 337.17, Florida Statutes; the Notice and the ITB specifications; the Department's 2020 Standard Specifications for Road and Bridge Construction; and the CAO website referenced in the Notice.
It was insufficient to send the paper bid bond without a reference to the CAO or "MS 55" and, instead, simply send it to the Department at 605 Suwannee Street in Tallahassee, Florida.
The CAO did not receive Heavy Civil's paper bid bond on or before 10:30 a.m. on November 18, 2020. This was caused in part by Heavy Civil's failure to review or follow the instructions in the Notice.
Heavy Civil's bid bond was nonresponsive.
Russell Engineering was the lowest responsive bidder for Contract T4557.
The Department's decision to award Contract T4557 to Russell Engineering was not clearly erroneous, contrary to competition, or arbitrary or capricious.
CONCLUSIONS OF LAW
DOAH has jurisdiction over the subject matter and the parties to this competitive procurement protest pursuant to sections 120.569, 120.57(1), and 120.57(3), Florida Statutes.
Section 120.57(3)(f) provides that in a competitive procurement protest:
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, proposals, or replies, 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 solicitation 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 other words, because Heavy Civil challenges the Department's decisions to find its proposal nonresponsive and award Contract T4557 to Russell Engineering, it has the burden of proof. See State Contracting & Eng'g Corp. v. Dep't of Transp., 709 So. 2d 607, 609 (Fla. 1st DCA 1998). Heavy Civil must sustain this burden of proof by a preponderance of the evidence. See Dep't of Transp. v. J.W.C. Co., Inc., 396 So. 2d 778, 787 (Fla. 1st DCA 1981).
CLEARLY ERRONEOUS, CONTRARY TO COMPETITION, ARBITRARY, OR CAPRICIOUS
Heavy Civil does not argue the decision to deem it nonresponsive was contrary to the Department's governing statutes and rules. Rather, the ultimate issue is whether the CAO's determination of Heavy Civil's proposal as nonresponsive because the CAO did not have the paper bid bond by the designated time and date was clearly erroneous, contrary to competition, arbitrary, or capricious.
"Clearly erroneous" has been defined as follows:
A finding of fact is clearly erroneous when, although there is evidence to support such finding, the reviewing court upon reviewing the entire evidence is left with the definite and firm conviction that a mistake has been committed. This standard plainly does not entitle a reviewing court to reverse the finding of the trier of fact simply because it is convinced that it would have decided the case differently. Such a mistake will be found to have occurred where findings are not supported by substantial evidence, are contrary to the clear weight of the evidence, or are based on an erroneous view of the law. Similarly, it has been held that a finding is clearly erroneous where it bears no rational relationship to the supporting evidentiary data, where it is based on a mistake as to the effect of the evidence, or where, although there is evidence which if credible would be substantial, the force and effect of the testimony considered as a whole convinces the court that the finding is so against the great preponderance of the credible testimony that it does not reflect or represent the truth and right of the case.
Dorsey v. State, 868 So. 2d 1192, 1209 n.16 (Fla. 2003).
As explained above, the evidence at the hearing established that the paper bid bond submitted by Heavy Civil was not addressed to the location in the Notice or referenced on the CAO's website. While Department employees could have investigated and may have found the proper office to where the
bid bond should have been delivered, it was not their responsibility. Rather it was Heavy's Civil's responsibility to address the package to the CAO at the location identified in the Notice. Instead, as Heavy Civil admits, it did not consult the Notice before submitting the paper bid bond, it failed to indicate the recipient's name or a Mail Stop on the label, and it did not include a cover letter indicating where the bid bond was to be delivered. The undersigned cannot find that the decision to deem Heavy Civil nonresponsive (because the CAO did not have the bid bond when it opened the proposals) was clearly erroneous.
To establish that the Department's action of deeming it nonresponsive was "contrary to competition," Heavy Civil must establish that those actions, at a minimum: (a) create the appearance of and opportunity for favoritism;
(b) erode public confidence that contracts are awarded equitably and economically; (c) cause the procurement process to be genuinely unfair or unreasonably exclusive; or (d) are unethical, dishonest, illegal, or fraudulent. See § 287.001, Fla. Stat.; and Harry Pepper & Assoc. v. City of Cape Coral, 352 So. 2d 1190, 1192 (Fla. 2d DCA 1977).
In this case, the Department cannot be said to have favored Russell Engineering, the intended awardee, by failing to ensure that Heavy Civil had complied with the requirements of the solicitation. On the contrary, if the Department had followed up with a bidder who had submitted an incomplete bid package so that it would not be deemed nonresponsive, it would appear to have been favoring an otherwise nonresponsive bidder. This would not only erode the public's confidence that the award was equitable and the process fair, but would reward bidders who ignore directions. It also would encourage such bidders to rely on Department staff to fix their mistakes. As such, the Department's actions cannot be said to be contrary to competition.
An arbitrary decision is one that is not supported by facts or logic or is despotic. See Agrico Chemical Co. v. State Dep't of Envtl. Reg., 365 So. 2d 759 (Fla. 1st DCA 1978). Under the arbitrary or capricious standard, "an agency
is to be subjected only to the most rudimentary command of rationality." Adam Smith Enters., Inc. v. State Dep't of Envtl. Reg., 553 So. 2d 1260, 1273 (Fla. 1st DCA 1989); see also Dravo Basic Materials Co., Inc. v. State Dep't of Transp., 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 neither arbitrary nor capricious.").
Florida's First District Court of Appeal articulated the "capricious" standard as follows:
A capricious action is one which is taken without thought or reason or irrationally. An arbitrary decision is one not supported by facts or logic, or despotic. Administrative discretion must be reasoned and based upon competent substantial evidence. Competent substantial evidence has been described as such evidence as a reasonable person would accept as adequate to support a conclusion.
Agrico Chemical Co., 365 So. 2d at 763.
Heavy Civil argues it was the Department's staff's failure to properly investigate the Federal Express package and document inside, and the CAO's failure to look for a paper bid bond that was mentioned but never received, which led to the decision to deem it nonresponsive. See Pet. PRO ¶ 34. ("For FDOT to conclude without further investigation that Heavy Civil made this representation while knowing that it never obtained or submitted a bid bond was arbitrary, capricious, and plainly unreasonable."). It also argues that its failure to timely get the bid bond to the CAO did not give it any competitive advantage over other bidders and did not deprive FDOT of an assurance that the contract would be properly performed.
As an initial matter, bids must strictly adhere to the material specifications as set forth by the agency soliciting the proposals. System Dev. Corp. v. Dep't of Health & Rehab. Servs., 423 So. 2d 433 (Fla. 1st DCA 1982).
"Responsive bid," "responsive proposal," or "responsive reply" means a bid, submitted by a responsive and responsible vendor, which "conforms in all material respects to the solicitation." § 287.012(26), Fla. Stat. A bid is nonresponsive if it materially deviates from the solicitation specifications in any respect. Tropabest Foods, Inc. v. Dep't of Gen. Servs., 493 So. 2d 50, 52 (Fla. 1st DCA 1986).
Heavy Civil essentially argues it should not be held to the same standard as other bidders, that it should not have to read (or follow directions), and if mistakes were made, it was not its fault. These arguments are rejected. Heavy Civil utterly ignores its own failure to read or follow the directions and specifications in the Notice. It cites no statutory language or provisions in the Notice that imposes a duty on FDOT employees to figure out where to properly deliver packages that are not properly addressed, or on the CAO to track down required documents missing from bid packages. Instead, the Notice placed the responsibility squarely on bidders to comply with the requirement to deliver a bid bond either electronically or by submitting it in paper form to the location and by the date identified in the Notice. Heavy Civil alone is responsible for failing to follow the Notice instructions.
In support of its argument that the Department is to blame, Heavy Civil relies on two federal cases that are inapplicable to this case. See Pet. PRO ¶ 34 (citing Level 3 Commcn's, LLC v. U.S., 129 Fed. Cl. 487, 503–05 (2016) and; BCPeabody Constr. Servs., Inc. v. U.S., 112 Fed. Cl. 502, 512 (2013). In Level 3 Communications, the losing bidder failed to submit an informational form on a specific type of computer file, as a provision of the solicitation required. The court categorized the information as minor or clerical because the same information was available elsewhere. It also relied on a federal regulation, FAR 15.306, which states that agencies can request a clarification to "clarify certain aspects of proposals … or to resolve minor or clerical errors." Id. at 504-04. The federal court held that while the language of FAR 15.306 was permissively worded, an agency's decision to not seek
clarifications "can constitute an abuse of discretion under certain circumstances." Id. at 504.
In BCPeabody, the agency deemed the disappointed bidder's proposal unacceptable because BCPeabody included two identical project information sheets for one subcontractor, rather than distinct sheets for each of its two subcontractors, as required by the solicitation. Id. at 505-06. Once again, applying FAR 15.306, the court found that the federal department had an obligation to contact the bidder to resolve the minor error. Id. at 513.
Not only is FAR 15.306 inapplicable to this case, but the facts of Heavy Civil's cases are also distinguishable in that the failure to timely submit the bid bond is not a clerical or typographical error. Rather, it is a statutory requirement. See § 377.17, Fla. Stat.
Heavy Civil next cites to Cady Studios, LLC v. Seminole County School Board, Case No. 18-0134BID (Fla. DOAH Jan. 23, 2019; SCSB April 2, 2019). See Pet. PRO ¶ 34. In Cady Studios, the disappointed bidder submitted one original, one copy, and ten USB copies of their bid to the agency, in accordance with the Request for Proposals. Id. ¶ 10. However, some of the USB drives were blank and one of the evaluators chose not to review a different USB drive or the paper copy of the bid and deemed Cady Studio's bid nonresponsive because of the blank USB drive. Id. ¶¶ 21-25. Judge Bruce Culpepper found this determination arbitrary and capricious, especially since Cady Studios received good evaluations from the other evaluators. Id. ¶ 81.
Unlike the situation in this proceeding, the evaluators in Cady Studios had access to all the necessary information. The only error in Cady Studios was that some of the USB drives were blank, not that the information had not been provided. Here, the CAO did not receive the paper bid bond at the location and by the deadline in the Notice.
Most importantly, in the cases above, the disappointed bidders all read the bid solicitation requirements and attempted to comply with them. Here,
Heavy Civil admits it did not refer to the Notice or bid documents when submitting the paper bid bond, and that it did not participate in the committee meetings. Ultimately, it failed to follow the directions and comply with a material requirement of the solicitation.
The CAO had no knowledge as to whether Heavy Civil had sent the paper bid bond (or that it was sitting in the Procurement Office) until after the award had already been made. As such, the CAO's (or the Department's) failure to investigate and determine if Heavy Civil had actually submitted its paper bid bond when the CAO did not receive it was not an arbitrary or capricious act.
86 As explained in Dravo Basic Materials Co., 602 So. 2d at 632 n.3, "[i]f 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 neither arbitrary nor capricious." See also Sci. Games, Inc. v. Dittler Bros., Inc., 586 So. 2d 1128, 1131 (Fla. 1st DCA 1991) ("a public body has wide discretion in the bidding process and its decision, when based on an honest exercise of the discretion, should not be overturned even if it may appear erroneous and even if reasonable persons may disagree.") (quotations omitted). Although one could find that Heavy Civil's failure to properly address the Federal Express label was exacerbated by the Department's mailroom and Procurement Office's failure to further investigate, based on the unique facts of this case, it was reasonable for the CAO to deem Heavy Civil's proposal nonresponsive.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a final order:
(a) rejecting Heavy Civil, Inc.'s proposal as nonresponsive; and (b) awarding Contract T4557 to Russell Engineering Inc., as the lowest responsive bidder.
DONE AND ENTERED this 29th day of July, 2021, in Tallahassee, Leon County, Florida.
Division of Administrative Hearings this 29th day of July, 2021.
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.
