STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

NORRIS W. BIRD, )

)

Petitioner, )

)

vs. ) CASE NO. 85-0352BID

) DEPARTMENT OF TRANSPORTATION, ) STATE OF FLORIDA, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above-styled case on February 28, 1985, at Tallahassee, Florida.

APPEARANCES

For Petitioner: Norris W. Bird, Pro Se

426 East Venice Avenue Venice, Florida 33595

For Respondent: Larry D. Scott, Esquire

Department of Transportation Haydon Burns Building Tallahassee, Florida 32301

By telegram dated January 2, 1985, and letter dated January 7, 1985, Norris W. Bird, Inc., protests the actions of the Department of Transportation in rejecting its apparent low bid on Job 12075-3408 on grounds the bid was non-responsive in that the bid failed to meet the Disadvantaged Business Requirements of the bid document.

At the hearing Norris W. Bird testified on behalf of Petitioner, Respondent called three witnesses, and eight exhibits were admitted into evidence.

Proposed findings of fact have been submitted by Respondent pursuant to Section 120.57(1)(b)4., Florida Statutes.

A ruling on each proposed finding has been made either directly or indirectly in this Recommended Order except where such proposed findings of fact have been rejected as subordinate, cumulative, immaterial, or unnecessary.

FINDINGS OF FACT

1. Petitioner obtained bid specifications and submitted the lowest bid on Department of Transportation project No. 12075-3408 to construct rest station facilities on the I-75 in Lee County. The specifications established a goal of 15 percent of the subcontracts be let to Disadvantaged Business Enterprises (Exhibit 1). If the successful bidder failed to meet this goal, he must show a good faith effort to meet the goal was made else his bid would be deemed non-responsive and rejected.

   
   

2. Rules 14-78.01 through 14-78.09, Florida Administrative Code, which became effective in June, 1984, were the controlling regulations at the time the bids for the project were solicited. These rules eliminate the former classification of Minority Business Enterprises comprised of minorities and women and replaces it with a Disadvantaged Business Enterprise (DBE) and a Women's Business Enterprise (WBE) classifications. In the instant contract a goal was established only for DBE.

   
   

3. Actions to be taken by the bidder to meet these goals were contained in the bid package, as were the criteria by which the bidder's good faith efforts to meets these goals would be evaluated by DOT. The bid specifications required the contractor, if he failed to meet the DBE goal established, to submit all documentation to support his claim that a good faith effort had been made.

   
   

4. With his bid Petitioner submitted only a list of

   28 subcontractors from whom it had solicited bids, of which

   6 were WBEs. That list showed the date request for bid was sent by certified mail by Petitioner, the date return receipt was received, whether a bid was received, and date back-up phone call was made. That document showed three listed companies submitted bids. DBE/WBE utilization form

   No. 1 (Exhibit 1) submitted by Petitioner showed no bids were received. Petitioner explained this discrepancy at the hearing, that he had rejected the three bids received because they were more than one percent higher than the bid submitted by another subcontractor. Documentation of this fact did not accompany Petitioner's bid.

   
   

5. Upon receipt of Petitioner's bid showing no DBE subcontractor, the bid was submitted to the Good Faith Effort Committee at DOT to evaluate the information contained in the bid to determine if Petitioner had submitted documentation to support his good faith efforts to meet the DBE goal. That committee found Petitioner had not provided adequate documentation of its efforts and recommended the bid be declared non-responsive (Exhibit 8).

   
   

6. Prior to Rules 14-78.01 through 14-78.09, Florida Administrative Code, becoming effective in June 1984, the rules allowed the contractor an additional ten days after bid opening to submit evidence that good faith efforts had been made to meet DBE goals. After June 1984 all documentation of good faith efforts are required to be submitted with the bid where DBE goals are not met.

   
   

7. In the event the DBE goal is not met by the contractor in his bid submission, the bid specifications (Exhibit 1) require the contractor to submit sufficient information to demonstrate he made good faith efforts to meet the goal. Those bid specifications further list nine items the Department will consider in evaluating the contractor's good faith efforts. These include submitting written notice by certified mail to all certified DBEs which perform the type work which the contractor intends to subcontract; whether the contractor selected economically feasible portions of the work to be done by DBEs; whether the contractor provided assistance to DBEs in reviewing plans and specifications; whether DBE goals were met by other bidders; whether contractor submits all quotations received from DBEs and, for those not accepted, an explanation of why not; whether contractor assisted DBEs in obtaining required bonding, lines of credit or insurance; whether contractor elected to subcontract types of work meeting capabilities of DBEs; whether contractor's efforts were merely proforma; and whether contractor has, on other contracts within the past six months, utilized DBEs.

8. A list of certified DBEs is contained in Exhibit

   7,

   which was available to Petitioner. Therein are listed many DBEs other than those on the list submitted by Petitioner with his bid. At the hearing return receipts for certified mail soliciting bids from DBEs by Petitioner were admitted into evidence, over objection, as Exhibit 3. Since the rules require all documentation of good faith efforts be submitted with the bid, that exhibit is not relevant.

   However, that exhibit clearly shows all certified DBEs were not solicited by Petitioner. Of those nine items Petitioner was notified would be considered by the Department in evaluating his good faith efforts to obtain the DBE goal, the evidence submitted with Petitioner's bid showed compliance with none. This gas the first bid submitted by Petitioner to Respondent. Other bidders met the DBE goals and the bid was awarded to the second low bidder.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

   
   

10. Although Petitioner was allowed to submit additional evidence, over the documentation submitted with his bid, of steps he took to show he made a good faith effort to comply with the DBE requirements of the bid specifications, even that evidence was insufficient. Furthermore, Rule 17-78.03(2)(b)4., Florida Administrative Code, specifically provides:

    
    

    The DBE and WBE participation information shall be submitted with the contractor's bid proposal. Award of the contract shall be conditioned upon submission of the DBE and WBE participation information with the bid proposal and upon satisfaction of the contract goals or, if the goals are not met, upon demonstrating that good faith efforts were made to meet the goals. Failure to satisfy these requirements shall result in a contractor's bid being deemed nonresponsive and the bid being rejected.

11. Since Petitioner's bid did not meet the DBE participation goals in the contract and insufficient documentation was submitted with the bid proposals to establish that good faith efforts were exerted by Petitioner to meet these goals, the bid must be held to be non-responsive in accordance with the rule above-quoted.

    
    

12. From the foregoing it is concluded that Norris W. Bird, Inc.'s bid proposal for project No. 12075-3408 did not meet the DBE goal requirements of 15 percent and insufficient documentation was presented with the bid to show a good faith effort to meet this DBE requirement. It is

RECOMMENDED that Petitioner's protest to the bid award be denied and the contract awarded to the next lowest responsible bidder.

ENTERED this 11th day of April, 1985, at Tallahassee, Florida.

Hearings

Hearings

K. N. AYERS Hearing Officer

Division of Administrative

The Oakland Building 2009 Apalachee Parkway

Tallahassee, Florida 32301

(904)488-9675

FILED with the Clerk of the Division of Administrative

this 11th day of April, 1985.

COPIES FURNISHED:

Norris W. Bird Norris W. Bird, Inc.

426 East Venice Avenue Venice, Florida 33595

Larry D. Scott, Esquire

Department of Transportation Haydon Burns Building Tallahassee, Florida 32301

Paul A. Pappas, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301

Docket for Case No: 85-000352

Orders for Case No: 85-000352