STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WINKO-MATIC SIGNAL COMPANY, )

)

Petitioner, )

)

vs. ) CASE NO. 85-3336BID

)

FLORIDA DEPARTMENT OF )

TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard at final hearing on October 14, 1985. The issues in this ease are whether the Petitioner, Winko-Matic Signal Company, has a substantial interest to entitle it to a section 120.57(1), Fla. Stat., hearing to contest the award of State Project No. 72000-3542 to Traffic Control Services, and whether the Petitioner or Traffic Control Devices is the "lowest responsible bidder" on this State Project.

APPEARANCES

For the Petitioner: Irwin M. Hart, President

Winko-Matic Signal Company 6301 Best Friend Road Norcross, Georgia 30071

For the Respondent: Larry D. Scott, Esquire

Department of Transportation Haydon Burns Building, MS-58 Tallahassee, Florida 32301

Mr. Hart is not an lawyer, but represented that he had consulted with his attorney.

This case is governed by the expedited hearing requirements of section 120.53(5), Fla. Stat., as amended by Chapter 85-180, Laws of Florida (1985). At the

beginning of the hearing, the Respondent moved to dismiss the petition for lack of a substantial interest in contesting the award of this contract to Traffic Control Devices. The motion was taken under advisement, and the hearing proceeded. The Petitioner presented three exhibits which were admitted into evidence, and two witnesses. The Respondent presented no exhibits and three witnesses.

At the conclusion of the hearing, the Hearing Officer allowed the Petitioner until October 18, 1985, to file a response to the motion to dismiss, and stated that the motion to dismiss would be first ruled upon before the merits of the bid protest would be briefed and proposed findings of fact and conclusions of law received. No response has been filed.

It appears from the uncontested facts produced during the hearing, as well as from the pleadings in the file, that the Petitioner does not have a substantial interest to be entitled to a section 120.57(1), Fla. Stat., hearing, and that the Respondent should enter its final order dismissing this petition.

FINDINGS OF FACT

1. The bid protest, which is the petition for administrative hearing, is a letter to the Clerk of Agency Proceedings, Department of Transportation, from Irwin M. Hart, President, Winko-Matic Signal Company, dated September 13, 1985.

   
   

2. The bid protest letter alleges that Winko-Matic bidded as a joint venture on State Project No. 72000-3542 with BHT Electrical. The bid protest further alleges that Winko-Matic is currently working on the same intersections in Jacksonville, and Traffic Control Devices is a strong competitor of BHT, and that Winko-Matic fears that there will be severe problems arising from having two competitors working in the same intersection at the same time.

   
   

3. The bid protest letter does not allege that Traffic Control Devices was not the lowest responsible bidder or that Winko-Matic was the lowest responsible bidder.

   
   

4. None of the exhibits or testimony presented at the final hearing by Winko-Matic was directed to the issue of

   whether Traffic Control Devices was not the lowest responsible bidder, or the issue of whether Winko-Matic was the lowest responsible bidder. All of the evidence was directed to the issue of problems that might arise if Traffic Control Devices and Winko- Matic work in the same intersection together at the same time.

   
   

5. The Respondent presented evidence, not contradicted by the Petitioner, that the Petitioner's bid was the fifth lowest out of about six bids. Traffic Control Devices, Inc. submitted the lowest bid.

   
   

6. The formal opening of the bids on State Project 72000- 3542 was July 31, 1985. The Notice of Solicitation was four weeks before that date. The Petitioner did not file a notice to protest the Notice of Solicitation at any time prior to the final hearing. The only notice to protest filed by the Petitioner is the one mentioned above in paragraph 1.

   
   

7. There is no direct evidence in the record that the Petitioner in fact received the Notice of Solicitation, but it must have received some form of notice since it submitted a bid.

   
   

   CONCLUSIONS OF LAW

   
   

8. Pursuant to section 337.11(3), Fla. Stat., the Respondent has only two options with respect to this State Project: either to award it to the lowest responsible bidder or reject all bids and readvertise. To have standing to raise the first issue in a section 120.57(1) hearing, the Petitioner must show that it has a substantial interest in the outcome by showing that it is in fact the lowest responsible bidder and that the intended recipient is not. Preston Carroll Company, Inc. v. Florida Keys Aqueduct Authority, 400 So. 2d 524 (Fla. 3d DCA 1981). The Petitioner has both failed to allege or even attempt to prove that it is the lowest responsible bidder. It therefore cannot raise the first legal issue because it lacks a substantial interest in the outcome.

   
   

9. The second legal option open to the Respondent is to reject all bids and readvertise. This seems to be the nature of the relief requested by the Petitioner, with the outcome to award the contract to the Petitioner, since any award to any other entity would be to a competitor. Rule

14-25.04(1), Florida Administrative Code, provides in part that "Any person adversely affected by the decision to solicit bids . . . shall file a notice of protest, in writing, within 72 hours after receipt of the notice of bid solicitation. . . ." The Petitioner in this case did not file any objection or protest until long after the bids were opened, and certainly beyond the 72 hour period in which to protest the solicitation. The time for objecting to an advertisement to award this contract to a competitor of the Petitioner, instead of a sole source contract with the Petitioner, is an objection to the notice of solicitation. Thus, to the extent that the petition conceivably can be construed as a proper objection to the notice of solicitation, it is untimely.

RECOMMENDATION

It is therefore recommended that the Florida Department of Transportation enter its final order dismissing the petition for a section 120.57(1), Fla. Stat., for lack of a substantial interest.

DONE and ENTERED this 6th day of November, 1985, in Tallahassee, Florida.

Hearings

Hearings 1985.

COPIES FURNISHED:

Irwin M. Hart, President

WILLIAM C. SHERRILL, JR.

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 6th day of November,

Winko-Matic Signal Company 6301 Best Friend Road Norcross, Georgia 30071

Larry D. Scott, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32301

Docket for Case No: 85-003336BID

Orders for Case No: 85-003336BID