STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

C-LINE COATING, )

)

Petitioner, )

)

v. )

) DEPARTMENT OF TRANSPORTATION, )

) CASE NO. 85-1004BID

Respondent, )

)

and )

)

V.I.P. PAINTING and )

SANDBLASTING, )

)

Intervenor. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in this case on May 14, 19851, in Tallahassee, Florida.

APPEARANCES

For Petitioner: C.L. Wood, Representative

C-Line Coating

P.O. Box 19234 Jacksonville, F1. 32245

For Respondent: Larry Scott, Esquire

Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, F1. 32301

For Intervenor: Demetrius Villiotis, President

V.I.P. Painting & Sandblasting

327 Kent Drive

Cocoa Beach, F1. 32931

ISSUE

The issue presented for decision herein is whether or not the Intervenor, V.I.P. Painting and Sandblasting, is the lowest responsible bidder on state project numbers 73906-9004 and 76906-9004.

FIMDINGS OF FACT

1..Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received, and the entire record compiled herein, I hereby make the following relevant factual findings.

2..Petitioner, C-Line Coating, and the Intervenor, V.I.P. Painting and Sandblasting, submitted bids to perform work for the above-referenced projects, which consisted of cleaning and painting all structural steel located in the scale pit areas of the Flagler Beach and Palatka Scales on State Roads 9 and 100, respectively, in Flagler and Putnam Counties.

1. Sealed bids were to be received in the downstairs conference room of the District Office, Department of Transportation, 719 S. Boulevard, Deland, Florida, on February 14, 1985. The bid opening was scheduled to occur at 9:30 a.m. (Deland local time).

   
   

2. On February 14, 1985, the bid letting occurred pursuant to notice in an advertisement to prospective bidders. Respondent received bids on said projects from Petitioner and Intervenor prior to 9:30 a.m.; however, the bid from Intervenor was not opened until after the scheduled letting. Intervenor's bid was opened, after notice to all bidders, on February 25, 1985.

   
   

3. Of the bids opened by Respondent on February 14, 1985, Petitioner was the apparent low bidder; however, upon later opening the bids submitted by the Intervenor, that bid was deemed the lowest responsible bidder by the Respondent, and the Respondent gave notice of its intent to award the contract to Intervenor.

   
   

4. Pursuant to the Notice to Contractors issued by the Respondent, bids or proposals were to be delivered to or mailed to arrive at the Department office designated in the Notice to Contractors prior to the deadline set out in the Notice, which,

   in this case as stated, was February 14, 1985. The Department office designated on the Notice was 719 S. Boulevard, Deland, Florida. (Respondent's Exhibit 1)

   
   

5. Intervenor mailed its bid by certified mail, return receipt requested, to the designated address on February 11, 1985. The U.S. Postal Service placed their first Notice of Receipt of Intervenor's certified envelope containing its bid in the Respondent's post office box on February 13, 1985 sometime after the morning pickup by the District office employee (Respondent). Respondent had Intervenor's bid in its possession on the morning of February 14, 1985, prior to 9:30 a.m., though it was not in the hands of the officer who conducted the bid letting (Thomas George) at the time the bids were opened. (Respondent's Exhibit 2)

   
   

6. Lewis Santucci2 left the Deland District office at aprroximately 9:00 a.m. on February 14, 1985 to pick up the mail at the Deland Post Office. Santucci picked the mail up at approximately 9:15 a.m. and arrived back at the District office with the mail pouch at approximately 9':30 a.m. The mail, which contained the Intervenor's bid, was placed in the upstairs mailroom where all bids, etc. are placed at approximately

   9:30 a.m. (Respondent's Exhibit 2)

   
   

7. Petitioner contends that Intervenor's bid was not a responsible bid inasmuch as it was not placed in an outer envelope which designated the number of the project on the outside of the sealed envelope. In this regard, Mr. George related that Petitioner's bid also did not contain the number of the project involved when Petitioner submitted its bid. Mr. George, however, placed the project number of Petitioner's bid on the envelope which appeared to cure that minor problem. That minor omission, by both the Petitioner and Intervenor, did not cause any confusion in the bid letting and was, at most, harmless error.

CONCLUSIONS OF LAW

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

   
   

2. The parties were duly noticed pursuant to the notice provisions of Chapter 120, Florida Statutes.

3. The general requirement specifications for mini- contracts promulgated by the Florida Department of Transportation and included within the Notice to Contractors issued for State Project Numbers 73906-9004 and 76906-9002 required that "proposals shall be delivered to or mailed to arrive at the Department office designated in the Notice to Contractors prior to the deadline set out in the Notice." The deadline in this case was February 14, 1985 at 9:30 a.m. Intervenor's bid was mailed to the designated address on February 11, 1985 and was delivered to the mail recepticle for that address on February 13, 1985. Intervenor's bid was, therefore, "mailed to arrive"

   prior to the deadline as required by the Notice to Contractors and general requirement specifications. Intervenor acted reasonably to comply with the Department's requirements for submitting its bid, although the bid was not opened by the Florida Department of Transportation on the designated date because the Department erroneously placed a location for bid submittals on the Notice to Contractors to which bids submitted by mail could not be delivered by the U.S. Postal Service.

   Based on the timely receipt of the bid submitted by the Intervenor, the Department acted properly within its discretion to rectify its error and notify all bidders that Intervenor's bid would be opened and considered at a time certain subsequent to the February 14, 1985 deadline. When Intervenor's bid was, in fact, opened and it was the lowest responsible bid for the subject project, the Department properly issued its notice to award the bid to Intervenor.

   
   

4. The Department of Transportation, as a public body, "has wide discretion in soliciting and accepting bids for public improvements and its decision, when based on the honest exercise of discretion, will not be overturned by a court even if it may appear erroneous and even if reasonable persons may disagree." Liberty County v. Baxter's Asphalt and Concrete, 421 So. 2d 505,

507 (Fla. 1982) Capeletti Brothers, Inc. v. State Department of General Services, 432 So. 2d 1359 (Fla. 1st DCA, 1983). There has been no showing of arbitrariness or capriciousness and no other basis has been offered to reverse the Department's notice of intent to award the bid to the Intervenor. It is therefore concluded that the Respondent, Florida Department of Transportation's award of the contract to V.I.P. Painting and Sandblasting as the lowest responsible bidder was a proper exercise of its discretion.

REC0MMENDATION

Based on the foregoing findings of fact and conclusions of law, it is recommended that the Petitioner's protest to the bid award be DENIED and State Project Numbers 73906-9004 and 76906- 9002 be awarded to V.I.P. Painting and Sandblasting as the lowest responsible bidder.

RECOMMENDED this 18th day of July, 1985, in Tallahassee, Florida.

JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, F1. 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 18th day of July, 1985.

ENDNOTES

1/ Respondent has submitted a proposed recommended order on May 26, 1985 which was considered by me in preparation of this

Recommended Order. A ruling on each proposed finding of fact 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.

2/ An employee of the Respondent.

COPIES FURNISHED:

C.L. Wood, Representative C-Line Coating

P.O. Box 19234 Jacksonville, F1. 32245

Larry Scott, Esquire Department of Transportation Havdon Burns Building

605 Suwannee Street

Tallahassee, F1. 32301

Demetrius Villiotis, President

V.I.P. Painting and Sandblasting

327 Kent Drive

Cocoa Beach, F1. 32931

Paul Pappas Secretary

Department of Transportation Haydon Burns Buildin

605 Suwannee Street

Tallahassee, F1. 32301

Docket for Case No: 85-001004BID

Orders for Case No: 85-001004BID