Pollock, a Hearing Officer with the Division of Administrative Hearings in Tallahassee, Florida on February 8, 1985. The issue for consideration at the hearing was whether Petitioner, W. C. Hale & Associates, was the lowest responsible bidder on state project No. 99902-1527.
106 South Marion St. Lake City, Florida 32055
On September 21, 1984, Petitioner herein, W. C. Hale & Associates, Inc., through W. C. Hale, sent a letter to Respondent's contractual services administrator, protesting the award of a contract for miscellaneous surveys to another bidder. Based on this protest, Respondent referred the matter to the Division of Administrative Hearings for a formal hearing.
At the hearing, Petitioner presented the testimony of John S. Berry, III, Respondent's Bureau Chief of Contractual Services, and James K. Havird, Respondent's District Location Engineer in Lake City. Petitioner also introduced petitioner's Exhibits 1- 4. Respondent called Mr. Berry as its witness, also.
On February 27, 1984, Respondent, Department of Transportation, (DOT), advertised for letters of submittals by pre-qualified surveying firms interested in bidding on the project in question. This project was for miscellaneous survey work in the amount of $100,000.00 to be performed at the will of the DOT
District II Engineer throughout the District II area. The work was to be done as need for it arose rather than on projects already existing and specifically identified. It was to be primarily for overflow surveying work that could not be handled by regular state survey crews.
DOT District II covers North Central Florida from the Georgia border on the North to a line extending from just south of Jacksonville on the East, toward the West below Gainesville, and ending just at Yankeetown on the West. The Western boundary is a line extending from Georgia to the Gulf of Mexico approximately twenty five miles East of Tallahassee. The District is headquartered in Lake City.
Four letters of intent were received from prospective bidders of which one was disqualified immediately because it had not been pre-qualified. The remaining three bidders were:
Petitioner (Hale)
L. L. Lee & Associates (Lee), and
Bennett R. Wattles & Associates (Wattles).
Thereafter, these three prospective bidders were evaluated according to a selection process which is multi-stepped.
The first step involves an evaluation of the submitted letters of intent to determine the prospect's capability to meet schedules and do the anticipated work. These evaluations, made at the District headquarters and received in Tallahassee on March 20, 1984 resulted in the following scores assessed:
(1) Hale | 33 |
(2) Lee | 37 |
(3) Wattles | 33. |
To those scores, numbers are added for work load and location by the Contractual Services Office on an objective basis which resulted in new scores of:
(1) Hale | 58 |
(2) Lee | 62 |
(3) Wattles | 56. |
Since at this point there were only three prospective bidders left, DOT requested proposals from all three.
Proposals were submitted by all three concerns on or about June 18, 1984. When received, they were sent to District II central officer personnel for evaluation by a three man committee convened there and consisting of the Deputy District Engineer, the District Location Engineer, and the Assistant District Design Engineer.
At this point, Lee withdrew from the competition due to outside considerations leaving only Hale and Wattles. These two firms were rated by the committee as follows:
| Technical Plan | Management Plan | Project Schedule | Other | Total |
Hale | 35 | 25 | 18 | 8 | 86 |
Wattles | 35 | 25 | 18 | 6 | 84 |
The two point edge awarded to Hale by the committee was due to the fact that its office was located in the center of the district at Lake City whereas Wattles' office being on the edge of the district in Jacksonville would be inconvenient. At this point, though fee schedules had been received, they were not viewed by the District Committee.
The proposals once evaluated by the District Committee are then evaluated by the Technical Committee in Tallahassee which consists of the Chief of Pre-Construction and Design, the Bureau Chief of Aerial Photography (for survey work), and the District Design Engineer. When this evaluation was completed, the combined score of the District and Technical Committees averaged:
Hale 75, and
Wattles 82.
At this point, the complete evaluation report is furnished to Mr. Berry and the preference for Wattles was based on the facts that over 50 percent of the projected work under the contract would exist in Duval County and there are already three DOT survey crews located permanently in Lake City. When this committee report was published, the committee did not know of the price proposals submitted by the parties. This information, in its pertinent particulars, shows that the average 5-man party rate proposed by Hale was
$619.83 and by Wattles was $650.00. The analysis of price proposals submitted by all three original bidders, completed in July, 1984, reflected that Hale was low bidder in every category of crew and mileage criteria. When this analysis was furnished to the Technical Committee, it came back with a recommendation that the best cost value would be furnished by Petitioner, Hale.
Thereafter, the proposal was submitted to the Selection Committee which consisted of the Secretary, the Assistant Secretary, and the Deputy Assistant Secretary, all of DOT, and Mr. Berry, for final selection. The selection is made considering all the evaluation committee work and the price quotation.
The Selection Committee met on August 29, 1984. It considered the evaluation report sheet of the Technical Committee along with all other relevant information and the selection is made based on the answers to questions asked by the committee members.
Here, Wattles was selected based on the conclusion that more than 50 percent of the prospective work under this contract was to be done in Duval County and that there were already three DOT survey teams located in Lake City. No DOT survey teams are located in Duval County. On this basis, Wattles would be under 30 miles for the majority of the trips and would charge $600.00 per day for a 5-man party. On the other hand, for more than 50 percent of the work, Hale would have to come from Lake City, a trip within the 51-75 mile range and
his fee for a 5-man party for that distance is $661.00 per trip. Therefore, even though Hale's fees are uniformly lower for equivalent trips, because his trips would be longer for a majority of the work, his overall cost to the DOT would be greater.
Utilizing the expected trip distances and numbers, a weighted average was computed to demonstrate the relative costs. These figures showed that for all work under the contract, Hale's price would be $630.12 and Wattles' would be
$618.75 per trip. On the basis of this information and, inter alia, the fact that DOT survey teams have until now done most of the work outside of Duval County, the Selection Committee decided to award the contract to Wattles and the parties were so notified.
The weighted cost figures were calculated by Mr. Berry on a hand-held calculator during the Selection Committee meeting at the request of the Secretary. All other calculations and analyses of costs were done by Mr. Alligood, a professional statistician.
Information to the fact that in excess of 50 percent of the work would be done in the Duval County area was not communicated to the prospective bidders at the time the proposals were solicited. While the terms of the advertisement are not in evidence, it may be presumed that the advertisement either expressly or impliedly indicated the work was to be done throughout District II. No indication was given to the bidders that weighted consideration would be given to the historical information on prior activity as to the location of most of the work. This factor was inserted into the framework of the consideration only after the evaluation and selection process had progressed to the Selection Committee level, the last step in the process before award.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings.
Section 337.11(1), Florida Statutes, authorizes the DOT to enter into contracts for the construction and maintenance of all roads designated as part of the state highway system or of any roads placed under its supervision. Contracts are to be awarded to the lowest responsible bidder for that particular work. The Department may reject all bids and either readvertise the work or otherwise perform it. Substantial discretion is left with an agency head to control the award of contracts within his procurement activity to insure that the State gets the best possible return for its money, that a contract is not let for a sum greater than the available funds, and that there is an actual competitive area of bidding on a particular proposal. However, this discretion is not without limits. The exercise of discretion by the agency must not be arbitrary, unreasonable, or capricious. Wood-Hopkins Contracting Company v. Roger J. Au and Son, 354 So.2d 450 (Fla. 1st DCA 1978).
The evidence here indicates that the Petitioner's bid is lower than that of his competitor in each category of performance both as to distance and as to crew size. The fact remains that the competitor, Wattles, is located in the area where by far the greatest percentage of the work is anticipated to be and experience has shown, usually is done. Though his price for each category of performance is higher than that of Petitioner, when the Petitioner's price for the distance that he must travel to accomplish the majority of the work is
compared against the competitor's price for a lesser distance to be travelled, the Petitioner's actual price charged would be higher than that of the competitor.
Respondent presented evidence to show, as was stated above, that the majority of the work to be let under the contract would be in the Duval County area which is the location of Petitioner's competitor. Petitioner presented no evidence to contradict this. Respondent's decision then, was based on historical data, which has not been successfully controverted or disproven. It cannot he said that Respondent's decision was unreasonable, arbitrary, or capricious.
However, in his posthearing argument, counsel for Petitioner urges that this information regarding the expected location of the future work to be done, which was apparently the significant factor in the Selection Committee's deliberations, but which was not previously listed as a fact or in the pre- bidding information given the bidders, requires either award of the contract to Petitioner, the lower overall bidder, or at least a rejection of all bids and a rebid based on all the available information.
This suggestion would, at first blush, appear to be an equitable solution. However, such a remedy is not required. The agency is not bound to consider only those factors which are specifically outlined in the call for bids in its analysis and evaluation of bids for a particular project. There are certain factors which are within the realm of agency experience on which it may draw to form parameters against which it weighs the bids submitted. This information is within that category. In addition, the information in question here was a matter of public record and could have been discovered by any bidder.
In light of the above, it is impossible to say that the agency decision here is subject to attack on the basis that it is arbitrary, unreasonable, or capricious.
