STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WOOD-HOPKINS CONTRACTING COMPANY, )

)

Petitioner, )

)

vs. ) CASE NO. 82-508BID

) DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in the above case before the Division of Administrative Hearings by its duly designated Hearing Officer, DONALD R. ALEXANDER on March 22, 1982, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Albert Levy

Post Office Box 3215 Jacksonville, Florida 32206

For Respondent: Charles G. Gardner, Esquire

Haydon Burns Building, Room 562 605 Suwannee Street

Tallahassee, Florida 32301 BACKGROUND

On February 8, 1982, Petitioner, Wood-Hopkins Contracting Company, filed an application with Respondent, Department of Transportation, seeking a certificate of qualification authorizing it to bid on Department construction contracts. On February 10, 1982, Respondent advised Petitioner that its application was being denied on the ground "... [t]he financial statements submitted (were) of a date of more than 120 days prior to the application..." in contravention of Chapter 14-22, Florida Administrative Code. By letter dated February 12, 1982, Petitioner requested a formal hearing pursuant to Subsection 120.57(1), Florida Statutes, to contest the denial of its application. The matter was forwarded to the Division of Administrative Hearings on February 19, 1982, with a request that a Hearing Officer be assigned to conduct a hearing. By Notice of Hearing dated March 9, 1982, the final hearing was scheduled for March 22, 1982, in Tallahassee, Florida. In scheduling the matter on less than fourteen days notice, the parties waived the notice requirement contained in Subsection 120.57(1)(b)2, Florida Statutes, so that the case could be heard on an expedited basis.

Pursuant to the provisions of Rule 28-5.1055, Florida Administrative Code, the undersigned made a diligent inquiry of Petitioner's prospective representative, Albert Levy, during a non-adversary proceeding, under oath and on the record, to assure that the prospective representative was qualified to

appear in this proceeding and capable of representing the rights and interests of Respondent. Such a finding was made and read into the record.

At the final hearing Petitioner presented the testimony of Albert Levy, its Assistant Secretary, and offered Petitioner's Exhibits 1 and 2, each of which was received into evidence. Petitioner's Exhibit 1 is a copy of the application for certificate of qualification. Although Subsection 337.14(1) Florida Statutes, provides that the application is confidential information and exempt from the provisions of the Public Records Law, Petitioner waived its confidentiality. Respondent presented the testimony of J. Ted Barefield, Department Contracts Officer, and offered Respondent's Exhibit 1, which was received into evidence.

The parties were given the opportunity to file proposed findings of fact and conclusions of law; however, they waived their right to do so.

The issue herein is whether Petitioner's application for a certificate of qualification should be granted by Respondent.

Based upon the entire record, the following findings of fact are determined:

FINDINGS OF FACT

1. Petitioner, Wood-Hopkins Contracting Company, is a general contractor specializing in heavy industrial and water-related construction activities. Its principal offices are located at 1901 Hill Street, Jacksonville, Florida.

   
   

2. On February 8, 1982, Petitioner filed an application for a certificate of qualification with Respondent, Department of Transportation. A certificate of qualification is necessary in order for any person or firm to bid on road and bridge work to be let by the Department. The application included, inter alia, financial statements for the forty weeks ending October 3, 1981. The statements were prepared by Coopers and Lybrand, an independent accounting firm.

   
   

3. On February 10, 1982, Respondent advised Petitioner by certified mail that its application was being denied on the ground "[t]he financial statements submitted (were) of a date of more than 120 days prior to the application." The letter of denial precipitated the instant proceeding.

   
   

4. Petitioner is currently qualified to bid on construction projects to be let by the Department. However, its certificate of qualification expires on March 27, 1982. It is also qualified to bid on contracts let by the Department of General Services and the University System for the State of Florida.

   
   

5. Prior to 1981, Petitioner's fiscal year-end was the Saturday nearest December 31 of each year. Therefore, its financial statements for 1980 were based upon the fifty-two weeks ended December 28, 1980. Sometime during 1981, Petitioner's parent company, Rowe Corporation, changed the fiscal year-end to the Saturday nearest September 30 of each year. Consequently, its most recent financial statements under the new fiscal year were based upon the forty weeks ended October 3, 1981.

   
   

6. Department rules and applicable statutory provisions require that financial statements submitted with an application reflect the financial position of the applicant as of a date not more than one hundred twenty days prior to the date of filing of the application. Petitioner's financial

   statements preceded the date of filing by one hundred twenty-eight days, or eight days more than the law allows.

   
   

7. Petitioner contends that it has been qualified to bid for a number of years, and its financial position has not materially changed even though its statements are more than four months old. It argues that the application of the rule in this case is arbitrary given the fact that it was only eight days late in filing its statements, and that the denial of its right to bid is harsh treatment for such a minor violation of the rule.

   
   

8. Respondent processes approximately five hundred applications for certificates of qualification each year. Many of these are not timely filed, thereby prompting requests for waiver of the rule. However, it has a uniform policy of not waiving the rule in any cases, and to require strict compliance with the rule.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes.

   
   

10. Subsection 337.14(1), Florida Statutes, provides in part as follows:

    
    

    337.14 Application for qualification; certificate of qualification; restriction.

    (1) Any person desiring to bid for the performance of any contract in excess of

    $100,000 which the Department of Transpor- tation proposes to let must first be cer- tified by the department as qualified pursuant to law and regulations of the department. The department shall adopt regulations for the qualification of persons to bid on contracts in excess of $100,000, which regulations shall include requirements with respect to the equipment, past record, experience, and organizational personnel of the applicant.

    Each applicant seeking qualification to bid on contracts in excess of $100,000 shall furnish the department a statement under oath, on

    such forms as the department may prescribe, setting forth detailed information with respect to his financial resources, equipment, past record, experience, and organizational personnel, together with such other infor- mation as the department may deem necessary.

    Each application for certification shall be accompanied by a financial statement of the applicant, which financial statement shall reflect the financial condition of the applicant as of a date not more than 120 days prior to the date of filing the application. (Emphasis Supplied)

    
    

11. Rule 14-22.02(1)(b)1, Florida Administrative Code, provides in part as follows:

    (b) Financial Statements:

    1. The financial statements included in the application shall reflect the financial condition of the applicant as of a date not more than 120 days prior to the date of filing the application, and the financial statements shall contain the opinion of a Certified Public Accountant licensed in any State of the United States, or a Public Accountant licensed by the State Board of Accountancy, State of Florida. (Emphasis Supplied)

    
    

12. Accordingly, it is mandatory that an application "reflect the financial condition of the applicant as of a date not more than 120 days prior to the date of filing the application."

    
    

13. Petitioner concedes its financial statements were not timely filed. It argues that a waiver of the filing requirement is justified due to the unusual circumstances in the case. However, Subsection 337.14(1) and Rule 14-

22.02 are controlling, and while an agency may waive a procedural or evidentiary rule, United Telephone Co. v. Mayo, 345 So.2d 648, 653 (Fla. 1977), it has no authority to waive a substantive requirement embodied in the law. 1/ Therefore the application must be, denied.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner's application for a certificate of

qualification be DENIED.

DONE and ENTERED this 24th day of March, 1982, in Tallahassee, Florida.

DONALD R. ALEXANDER

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 24th day of March, 1982.

ENDNOTE

1/ petitioner's only remedy is to prepare new financial statements using a time period that comports with the Department requirements and to submit a second application.

COPIES FURNISHED:

Mr. Albert Levy

Post Office Box 3215 Jacksonville, Florida 32206

Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building - Room 562 605 Suwannee Street

Tallahassee, Florida 32301

Mr. J. Ted Barefield Contracts Officer

Department of Transportation Haydon Burns Building Tallahassee, Florida 32301

Docket for Case No: 82-000508

Orders for Case No: 82-000508