STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HEWITT CONTRACTION COMPANY, )

)

Petitioner, )

)

vs. ) CASE NO. 84-1598BID

) DEPARTMENT OF TRANSPORTATION, )

)

Respondent, )

and )

)

RGK, INC., )

)

Intervenor. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William E. Williams, held a public hearing in this cause on July 17, 1984, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Maxwell G. Battle, Esquire

610 North Florida Avenue Tampa, Florida 33601

and

Crit Smith, Esquire

320 Lewis State Bank Building Tallahassee, Florida 32301

For Respondent: Mark Linsky, Esquire

Department of Transportation 605 Suwannee Street

Tallahassee, Florida 32301

For Intervenor: F. Alan Cummings, Esquire

Post Office Drawer 810 Tallahassee, Florida 32302

INTRODUCTION

Petitioner, Hewitt Contracting Company ("Petitioner") a disappointed bidder, timely filed a protest of the proposed award of a contract to be let by the State of Florida, Department of Transportation ("DOT") to RGK, Inc. ("Intervenor"), pursuant to the provisions of Section 120.53, Florida Statutes. This cause was scheduled for hearing on July 17, 1984, by amended notice of hearing dated June 19, 1984.

Pending at the time of final hearing was a Motion to Dismiss for Lack of Standing filed jointly by DOT and intervenor. Also pending were a Motion for Sanctions and a Motion for Expenses for Failure to Admit filed by Intervenor.

In order to facilitate a resolution of the presentation and disposition of these motions, the Hearing Officer ordered the bifurcation of the final hearing.

Testimony and argument were first to be considered on the issue of Petitioner's standing and upon the pending motions, with the hearing on the merits to await the outcome of this initial stage.

At the final hearing, petitioner called John T. Barefield, Thomas E. Drawdy and Charles Taylor as its witnesses. Petitioner offered Petitioner's Exhibits 1 and 2, which were received into evidence. DOT called P. E. Carpenter and Thomas

1. Drawdy as its witnesses, and offered Respondent's Exhibits 1 through 7, which were received into evidence. Intervenor called no witnesses and offered no exhibits for inclusion in the record.

   
   

   Counsel have submitted proposed findings of fact for consideration by the Hearing Officer. To the extent that those proposed findings are not included in this Recommended Order, they have been specifically rejected, as being either irrelevant to the issues involved in this proceeding, or not having been supported by evidence of record.

   
   

   FINDINGS OF FACT

   
   

   1. On February 29, 1984, DOT received bids on a highway construction project designated as follows: Federal Aid Project No. F-300-2(3)(JOB No. 11070-3504), Lake County, Florida ("the project"). Six bids were submitted. Intervenor was the apparent low bidder, having submitted a bid in the amount of

      $5,479,403.76. Petitioner was the apparent second low bidder at $5,491,602.16. Following a review of the bid submitted by Intervenor, DOT determined Intervenor to be the lowest responsible bidder and announced its intention to award the project to Intervenor by posting the bid tabulations on April 9, 1984.

      Thereafter, Petitioner filed its notice of protest with DOT within the time provided in Section 120.53, Florida Statutes.

      
      

   2. The project at issue in this proceeding is a federal aid project. In order for DOT to receive federal aid funding from the United States Department of Transportation for the project, the Federal Highway Administration must concur in DOT's decision to award the contract to a particular contractor.

      
      

   3. At the time of the bid letting, Petitioner held a Certificate of Qualification with DOT. Thereafter, however, on April 20, 1984, Petitioner was convicted by the United States District Court for the Northern District of Florida, Tallahassee Division, of conspiring to submit collusive, non- competitive and rigged bids in violation of Title 15, United States Code, Section 1. Thereafter, on June 1, 1984, DOT sent Petitioner a notice by certified mail that it intended to revoke Petitioner's Certificate of Qualification pursuant to Section 337.165, Florida Statutes. The notice advised Petitioner that it could request a hearing within ten days of receipt of notification, but Petitioner chose not to request such a hearing. Thereafter, by final agency action of June 18, 1984, DOT revoked Petitioner's Certificate of Qualification to participate as a contractor on DOT projects for a period of 36 months commencing June 18, 1984.

      
      

   4. On June 18, 1984, the Federal Highway Administration declared

      Petitioner unacceptable for employment on any future highway projects requiring Federal Highway Administration approval or concurrence for a period of six months commencing June 1, 1984, and ending December 17, 1984. This action was based upon Petitioner's aforementioned conviction.

      
      

      CONCLUSIONS OF LAW

      
      

   5. The Division of Administrative Hearings has jurisdiction over the subject matter of, and the parties to this proceeding. Section 120.57(1), Florida Statutes.

      
      

   6. In a formal administrative proceeding conducted pursuant to Section 120.57(1), Florida Statutes, a petitioner bears the burden of proving its standing to maintain the proceeding when standing is placed in issue. Department of Health and Rehabilitative Services v. Alice P., 60 So.2d 1045 (Fla. 1st DCA 1979). In order to establish standing, a party to a Section

      120.57 hearing must demonstrate that it will suffer injury in fact of sufficient immediacy to entitle it to participate as a party, and that its substantial injury is of a type or nature which the proceeding is designed to protect. Agrico Chemical Company v. Department of Environmental Regulation, 406 So.2d 478 (Fla. 2nd DCA 1981). See also, Florida Department of Offender Rehabilitation v. Jerry, 353 So.2d 1230 (Fla. 1st DCA 1978).

      
      

   7. Section 337.165(2)(a), Florida Statutes, disqualifies any contractor from bidding on work let by DOT subsequent to January 1, 1978 when that contractor has ". . . been convicted of a contract crime within the jurisdiction of any state or federal court." Section 337.165(3), Florida Statutes, provides that a contractor whose certificate has been revoked for conviction of a contract crime ". . . may not act as a prime contractor . . . on any Department contract or project during the period of such denial or revocation."

      
      

   8. The purpose of a Section 120.57(1), Florida Statutes, proceeding is to formulate final agency action, not to review action taken preliminarily. McDonald v. Department of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977). Consequently, a Hearing Officer or an agency head is bound to consider changes in circumstances occurring between the initiation of administrative proceedings and the conduct of a final evidentiary hearing in reaching its conclusion. Couch Construction Company, Inc. v. Department of Transportation,

      361 So.2d 172 (Fla. 1st DCA 1978). Thus, although Petitioner's Certificate of Qualification was valid at the time of the bid letting, its standing must be demonstrated as of the time of final hearing in order to demonstrate that its substantial interests will be affected by the outcome of agency proceedings. By virtue of Petitioner's federal conviction of a contract crime, DOT's consequent revocation of its Certificate of Qualification, and the effect of Section 337.165, Florida Statutes, Petitioner may not be awarded the contract at issue in this cause, and accordingly lacks a "substantial interest" in the proceeding.

      
      

      Accordingly, it is ordered and recommended as follows:

      
      

      1. Based upon a review of the complete record in this cause, Intervenor's Motion for Sanctions and Motion for Expenses for Failure to Admit are DENIED.

         
         

      2. It is RECOMMENDED that a final order be entered by the State of Florida, Department of Transportation, dismissing the petition on the grounds that Petitioner lacks standing to contest the proposed agency action to award the contested contract to Intervenor.

      DONE AND ENTERED this 27th day of July, 1984, at Tallahassee, Florida.

      
      

      WILLIAM E. WILLIAMS

      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 27th day of July, 1984.

      
      

      COPIES FURNISHED:

      
      

      Maxwell G. Battle, Esquire 610 North Florida Avenue Tampa, Florida 33601

      
      

      Crit Smith, Esquire

      320 Lewis State Bank Building Tallahassee, Florida 32301

      
      

      Mark Linsky, Esquire Department of Transportation 605 Suwannee Street

      Tallahassee, Florida 32301

      
      

2. Alan Cummings, Esquire Post Office Drawer 810 Tallahassee, Florida 32302

Paul A. Pappas, Secretary Department of Transportation 605 Suwannee Street

Tallahassee, Florida 32301

Docket for Case No: 84-001598

Orders for Case No: 84-001598