STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARVIN'S GARDEN & LANDSCAPE )

SERVICES, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 85-3337B1D

) DEPARTMENT OF TRANSPORTATION, )

)

Respondent, )

and )

) WEEKLEY ASPHALT PAVING, INC., )

)

Intervenor. )

)

RECOMMENDED ORDER

Pursuant to notice, final hearing was held in the above-captioned matter on October 11, 1985, before the undersigned Hearing Officer of the Division of Administrative Hearings. The parties were represented as follows:

APPEARANCES

For Petitioner: Marvin Gross, President Marvin's Gardens 37 South McIntosh Road and Landscape Sarasota, Florida 33582 Svcs., Inc.

("Marvin's Garden")

For Respondent: Mel L. Wilson, Esquire Department of Haydon Burns Building Transportation 605 Suwannee Street

("DOT") Tallahassee, Florida 32301

For Intervenor: Harry R. Detwiler, Jr., Esquire Weekley Asphalt HOLLAND & KNIGHT

Paving, Inc. Post Office Drawer 810

("Weekley") Tallahassee, Florida 32302

Preliminary Matters and Issues

This proceeding was initiated by a bid protest filed by counsel for Petitioner and dated September 9, 1985. The protest was transmitted by the Department of Transportation to the Division of Administrative Hearings and was received by the Division on September 27, 1985. Counsel for Respondent notified all bidders for the relevant project that the protest was filed, and an unopposed Motion to Intervene by Weekley Asphalt Paving, Inc., was granted.

At the commencement of the hearing Marvin Gross, as President and sole stockholder, was determined qualified to represent Marvin's Garden and Landscape Services, Inc., Manolias Nursing and Convalescent Center v. Department of Health and Rehabilitative Services 428 So.2d 256 (1st DCA 1982).

Marvin Gross was the sole witness for Petitioner.

Raymond Patrick Haverty, Public Transportation Specialist I, testified for Respondent, DOT. All exhibits (two for Petitioner and eight for Respondent) were admitted by stipulation. Weekley presented neither witnesses nor exhibits but participated in the cross-examination of witnesses.

The issue at the hearing was whether Marvin's Garden, or Weekley presented the lowest responsible bid on State Project Nos. 86070-3492 and 93220-3403.

FINDINGS OF FACT

Both DOT and Weekley submitted proposed Recommended Orders. Their proposed findings of fact have generally been adopted here but are addressed in detail in Appendix A, attached and incorporated in this Recommended Order.

1. On or before July 31, 1985, DOT received sealed bids from three bidders for State Project Nos. 86070-3492 and 93220-3403, involving landscaping of interchanges in Broward and Palm Beach counties. Marvin's Garden was the apparent low bidder, with a total of $389,112.19 shown on the face sheet of the bid blank form. Weekley was the next lowest bidder with a total of $419,899.56, and P. J.

   Constructors, Inc., was the highest bidder with a total of

   $458,805.90.

   
   

2. After review of the bid documents for compliance with DOT bid procedures, a discrepancy was found in the Marvin's Garden bid and DOT notified the parties by letter dated August 20, 1985, that Weekley was the apparent low bidder on the project.

   
   

3. The discrepancy was found on page 001 of the bid blank form submitted by Marvin's Garden. For item 570-11, "Water for Plant Establishment," under the column, unit price written in words, Marvin's Garden showed "fourteen thousand two hundred eighty two dollars and sixty six cents." The column, unit price in figures, showed "14,282.66," and the final column, headed "amounts" showed "14,282.16." The bid item was supposed to show the unit price for a thousand gallons of water (which price was to be written in both words and figures) and a total, or extension price for 3,743.125 thousand gallons of water. When the unit price on Marvin's Garden's bid was multiplied by 3,743.125 (number of units), the resulting total price for that bid item was $53,461,781.71. This figure was entered on the form in red ink and was initialled by Raymond Patrick Haverty, the DOT reviewer. Marvin's Garden's total bid for the project was then adjusted to

   $53,836,611.04, a figure far in excess of either Weekley's or P. J. Constructors' bids.

   
   

4. Marvin Gross is the individual responsible for preparing and submitting bids for his corporation. He has been doing bid work for DOT for approximately 20 years and is thoroughly familiar with the bid procedures, forms and standard specifications. He attributes the irregularity on his submission to his "tunnel vision."

   
   

5. Unit prices are significant because the quantity designated by DOT is merely an approximate, best guess by the Department engineers. For item 570-II, unpredictable weather conditions will ultimately dictate exactly how much water will be necessary to successfully complete the landscape project. That exact quantity times the unit price will be the basis of payment to the contractor.

   
   

6. DOT found no violations of bid requirements in the bids of Weekley and P. J. Constructors, Inc., and none have been raised in this proceeding.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over this proceeding and the parties thereto pursuant to Sections 120.53(5) and 120.57(1) Florida Statutes.

   
   

8. The document entitled "Standard Specifications for Road and Bridge Construction, Edition of 1982," is incorporated into bid documents and imposes requirements on bidders and the agency alike. A relevant portion of that document provides:

   
   

   SECTION 3

   AWARD AND EXECUTION OF CONTRACT

   
   

   3-1 Consideration of Bids

   For the purpose of award, after the proposals are opened and read, the correct summation of the products of the approximate quantities shown in the proposal, by the unit bid prices, will be considered the bid. The amounts then will be compared and the results of such comparison will be made available to the public. Until the actual award of the contract, however, the right will be reserved to reject any or all proposals and to waive technical errors as may be deemed best for the interest of the State. In the event of any discrepancy in the three entries for the price for any item, the unit price as shown in words shall govern unless the extension and the unit price shown in figures are in agreement with each other, in which case they

   shall govern over the unit price shown in words.

   
   

9. This section requires that the approximate quantity of water (3,743.125 thousand-gallons) be multiplied by the unit bid price ($14,282.66), to obtain Marvin's Garden's correct bid. This section also requires that where discrepancies in the three entries are found, as in item 570-1, the unit price shall govern. This section compels the bid recomputation that was made by DOT.

   
   

10. In its notice of protest letter dated September 9, 1985, Marvin's Garden contended that the last sentence

    of Section 3-1, favors its position that the proper bid was reflected in the "amount," or extension column. At the time the protest was filed, and until the hearing when he examined the original bid document that he submitted to DOT, Marvin Gross believed that the figures he had on the work sheet in his file were the figures he submitted. The work sheet reflected the same figure in each of the three columns for item 570-1: $14,282.66. If that had been the actual bid then an apparent ambiguity would have to be resolved in the language ". . . unless the extension and the unit price shown in figures are in agreement with each other, in which case they shall govern over the unit price shown in words." (emphasis added) Since the actual bid figure in the final column was $14,282.16, rather than

    $14,282.66, this issue need not be addressed.

    
    

11. Marvin's Garden also suggested in its September 9th letter a unit price that was evidently derived by dividing his extension figure by the estimated quantity. This procedure violates the standard specifications and would amount to an improper submittal after the deadline for bids. See E. M. Watkins & Company, Inc. v. Board of Regents, 414 So.2d 583 (1st DCA 1982) and

    
    

12. While an agency generally has the discretion to "waive technical errors as may be deemed best for the interest of the state," to do so here would require that the agency ignore the more specific instructions of Section 3-1. Even though the error by Marvin's Garden's bid is a technical error and the intent is fairly clear on the face of the bid, the integrity of the process and the public interest is best served by strict adherence to the bid specifications and consistency with past practice of the agency. International Foundation Corporation v. DOT, DOAH Case No. 83-1851. (Final order entered on December 8, 1983)

RECOMMENDATION

For the foregoing reasons, a final order should be issued declaring Weekley the lowest responsible bidder on project Nos. 86070-3492 and 93220-3403, and the contract awarded accordingly.

DONE and ORDERED this 2nd day of December 1985, in Tallahassee, Florida.

Hearings

Hearings

MARY CLARK, 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 2nd day of December 1985.

APPENDIX

In accordance with Section 120.59(2) Florida Statutes, the following are recommended rulings on proposed findings of fact submitted by Respondent and Intervenor in this case.

Respondent's Paragraph: Corresponding R. O.

Paragraph or basis for rejection:

1. The corporate status and the addresses of the bidders are not material.

2. See Paragraph 1, R.O.

3. See Paragraph 2, R.O. and Conclusion of law 2,

   R.O.

4. See Paragraph 3, R.O.

5. See Conclusion of law 2, R.O.

6. See Paragraph 3, R.O.

7. See Paragraph 6, R.O.

8. See Paragraph 2, R.O.

Intervenor's Paragraph: Corresponding R.O.

Paragraph or basis for rejection:

1. See Paragraphs 1 and 2, R.O.

2. Facts which relate to the composition of bid packages are not material.

3. See Paragraph 3, R.O.

4. See Paragraph 3, R.O.

5. See Conclusion of law 2, R.O.

6. See Paragraph 3, R.0.

7. See Conclusion of law 5, R.O., relating to the specifications of the department. The remainder of the paragraph proposed is immaterial.

8. See Paragraph 5, R.O.

COPIES FURNISHED:

Thomas E. Drawdy, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301

A. J. Spalla, Esquire General Counsel

562 Haydon Burns Bldg. 605 Suwannee Street

Tallahassee, Florida 32301

Mr. Marvin Gross, President Marvin's Garden and Landscape

Services, Inc.

37 North McIntosh Sarasota, Florida 33582

Mel L. Wilson, Esquire Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32301

Harry R. Detwiler, Jr., Esquire HOLLAND & KNIGHT

Post Office Drawer 810 Tallahassee, Florida 32302

Docket for Case No: 85-003337BID

Orders for Case No: 85-003337BID