STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HENDRY CORPORATION, )

)

Petitioner, )

)

vs. ) CASE NO. 85-3338BID

) DEPARTMENT OF TRANSPORTATION, )

)

Respondent, )

and )

) ATLANTIC FOUNDATION COMPANY, INC., )

)

Intervenor. )

)

RECOMMENDED ORDER

Pursuant to written notice, a formal hearing was held in this case before Larry J. Sartin, duly designated Hearing Officer of the Division of Administrative Hearings, on October 11, 1985, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Kent P. Smith, Esquire

Richard J. Storrs, Esquire Non-Attorney Representatives Smith & Fleming

2300 Peachtree Center Tower

230 Peachtree Street, Northwest Atlanta, Georgia 30303

Guyte P. McCord, III, Esquire MacFarlane, Ferguson, Allison & Kelly 700 First Florida Bank Building

Post Office Box 82 Tallahassee, Florida 32302

For Respondent: Larry D. Scott, Esquire

Department of Transportation

Haydon Burns Building, Mail Station

58

Tallahassee, Florida 32301

For Intervenor: Chris H. Bentley, Esquire

Jeannette M. Andrews, Esquire Fuller & Johnson, P.A.

111 North Calhoun Street Post Office Box 1739 Tallahassee, Florida 32302

STATEMENT OF THE CASE

This case arose upon the timely filing of a Formal Written Protest by the Petitioner, Hendry Corporation, challenging a decision of the Respondent, the Florida Department of Transportation, to award State Project No. 90050-3523 to the Intervenor, Atlantic Foundation Company, Inc. The Formal Written Protest was filed with the Division of Administrative Hearings on September 27, 1985. As required by Chapter 85-180, Section 77, 1985 Laws of Florida, the final hearing of this case was set by written notice within fifteen days of September 27, 1985.

At the commencement of the final hearing, the Petitioner requested that its Formal Written Protest be treated as a rule challenge under Section 120.56, Florida Statutes (1983). The request was denied. The Petitioner also requested that the case be remanded to the Respondent. This request was also denied.

The Petitioner presented the testimony of Paul E. Porterfield and John Ted Barefield. The Petitioner also offered Petitioner's Exhibits 1-3. Petitioner's Exhibit 1 was withdrawn. Petitioner's Exhibit 2 was accepted into evidence. A ruling on Petitioner's Exhibit 3 was reserved. Petitioner's Exhibit 3 is hereby rejected.

The Respondent and Intervenor did not call any witnesses or offer any exhibits.

The parties stipulated to certain facts, which were read into the record, and offered Stipulated Exhibits 1-3. The Stipulated Exhibits were all accepted into evidence.

The parties were given fifteen days from receipt of the transcript of the final hearing to submit proposed findings of fact and conclusions of law. All of the parties timely filed their proposed findings of fact and conclusions of law. A ruling on each proposed finding of fact has been made either directly or indirectly in this

Recommended Order, except where a proposed finding of fact has been rejected as subordinate, cumulative, immaterial or unnecessary. Additionally, attached to this Recommended Order is an Appendix which indicates where proposed findings of fact which have been accepted have been made in this Recommended Order and why proposed findings of fact which have not been accepted have been rejected.

After the conclusion of the final hearing of this case and before the submission of proposed findings of fact, the Petitioner filed Hendry Corporation's Request (With Supporting Discussion and Authority) that the Hearing Officer Exercise Authority Given Him by Statute. This request essentially requested that the Petitioner be allowed to challenge certain of the Respondent's rules. In response to this request, the Respondent filed a Motion to Deny Hendry's Request for Reconsideration and the Intervenor filed a response in opposition to the Petitioner's request. Prior to the submission of the proposed findings of fact, the Petitioner's request was denied.

STATEMENT OF THE ISSUES

1. Whether the Petitioner is the lowest responsible bidder on State Project No. 90050-3523?

   
   

2. Whether the Respondent should have waived the Petitioner's alleged inadvertent failure to properly complete D.B.E./W.B.E. Utilization Form No. 1 submitted with its bid?

   
   

3. Whether the Respondent's action in awarding State Project No. 90050-3523 to the Intervenor was ultra vires its statutory authority?

   
   

4. Whether the Respondent's regulations, solicitations and bidding and contract procedures are illegal and violative of the United States Constitution and the Florida Constitution?

These are the issues raised by the Petitioner. Issue

4 is beyond the jurisdiction of this case and, therefore, no recommendation on issue 4 will be made in this Recommended Order.

FINDINGS OF FACT

1. The parties stipulated to several findings of fact which were read into the record. The stipulated findings of fact, which are hereby adopted, are as follows:

   
   

   MR. BENTLEY: . . . .

   The first thing that we can stipulate to is that there were three bidders on this project; that one was Hendry Corporation, that one was Atlantic Foundation, and that one was Misener Marine construction, Inc.; that the only issues that are in dispute with regard to the responsiveness or responsibility of those three bidders have to do with the WBE submission of Hendry Corporation; that there are no issues in dispute as to the responsibility of Atlantic Foundation or Misener, which is really not at issue here, or the responsiveness of Atlantic Foundation or Misener to the bid proposal.

   
   

   We can stipulate that the figure bid by Hendry Corporation was $995,948.47; that the bid price submitted by Atlantic Foundation was $1,079,706.90; and that the bid of Misener Marine was $1,522,890.80.

   
   

   We can stipulate that all three bidders timely submitted their bids.

   
   

   Transcript, page 36, lines 14-25 and page 37, lines 1-10.

   
   

   MR. BENTLEY: With regard to the matters alleged in the formal written protest, the parties would stipulate that the information with regard to the issues raised in the formal written protest submitted by Hendry Corporation to the Department of Transportation, that is, information pertaining to WBEs, the only information submitted is that which was submitted as part of the bid, which has been marked as

   Exhibit 1.

   
   

   The parties would stipulate that each

   has standing in this proceeding; that they are substantially affected because they are

   all bidders on the same project.

   
   

   The parties would further stipulate that

   the Department of Transportation has rejected Hendry's bid for failure to comply with the WBE requirements set forth in the rule and the specifications.

   
   

   Transcript; page 39, lines 3-17.

   
   

   MR. BENTLEY: We can further stipulate

   that no documentation of good faith efforts, except as is reflected in the bid documents-- and there is no such proffer made in the bid documents--was made by Hendry with regard to WBEs.

   
   

   Transcript, page 40, lines 5-9.

   
   

   MR. SMITH: I think that this is covered in Mr. Porterfield's deposition, but I would like a stipulation that at the time we submitted this bid, Hendry did have an approved DBE affirmative action plan.

   
   

   Transcript, page 41, lines 20-23.

   
   

2. In a Notice to Contractors dated July 3, 1985, the Respondent notified contractors that sealed bids would be received on a project designated as Federal Aid Project No. OH-485-1 (117), (Job No. 90050-3523) (hereinafter referred to as the "Project"). The Project was described as follows:

   
   

   MONROE COUNTY: FEDERAL AID PROJECT NO. OH-485-1 (117)(JOB NO. 90050-3523), SR-5

   (US-1) At Channel No. 5 Bridge North of Layton. Work consists of Removing Sections of Old Bridge; Fender System and Navigational Lights; Construct New Pav't. of Existing Limerock Material Shaped and Compacted to Equivalent 10" Limerock Base and Type S Asph. Conc. Structural Cse.; Guardrail (Rdwy.); Muck Blanket; Floating Silt Barrier; Pav't.

   Marking.s (Ref. Pav't. Markers and Thermoplastic Striping); and Incidental Items. (B.I. 6116826) (APPROX. 290 CALENDAR

   DAYS) ON-THE-JOB TRAINING WILL BE REQUIRED FOR THIS PROJECT W.B.E. GOAL 2.0 percent COST $20.00

   
   

3. Bids on the Project were acceptable until 10:30 a.m., July 31, 1985. The Petitioner filed its bid before the deadline. The bid was prepared by Mr. Paul E. Porterfield, the Petitioner's administrative engineer and chief estimator.

   
   

4. The bid filed by the Petitioner with the Respondent on the Project included, in pertinent part, the following:

   
   

   1. A Bid Blank which indicated that the "Female Goal" for the project was 2 percent.

      
      

   2. The "Notice to Contractors" dated July 3, 1985, which included the following:

      
      

      THE PROJECTS LISTED BELOW MAY CONTAIN DISADVANTAGED BUSINESS ENTERPRISE GOALS, PLEASE CHECK SPECIAL PROVISIONS FOR SPECIFIC PERCENTAGE OF D.B.E. AND/OR W.B.E. GOAL REQUIREMENTS, AND SUBMISSION OF DISADVANTAGED BUSINESS AFFIRMATIVE ACTION PROGRAM PLAN.

      
      

      This Notice also included the description of the Project quoted above in finding of fact 2.

      
      

   3. A document titled "SPECIAL PROVISIONS" dated May 1, 1985. In this document it was indicated that:

      
      

      1. Contractors must meet or exceed established Women Business Enterprise (hereinafter referred to as "W.B.E.") goals or demonstrate that the goals could not be met, despite the contractor's good faith efforts;

         
         

      2. W.B.E. participation information must be submitted with the contractor's bid proposal;

         
         

      3. The award of a contract with W.B.E. goals would be conditioned upon the submission of W.B.E. participation information with the bid proposal and upon satisfaction of the contract goals or, if the goals were not met, upon demonstrating that good faith efforts were made to meet the goals;

         
         

      4. A contractor's bid proposal must include the information specified on D.B.E./W.B.E. Utilization Form No. 1;

         
         

      5. Failure to meet the above requirements would result in disqualification of a bidder; and

         
         

      6. In determining the amount of W.B.E. participation, the Respondent would count the total dollar value of a contract to be awarded to a certified W.B.E.

      
      

      What constitutes a W.B.E. was also provided in the Special Provisions.

      
      

   4. A document titled "Supplemental Special Provisions (First Supplement)" dated June 24, 1985, pertaining to the Project which specified that the W.B.E. goal for the Project was 2 percent.

      
      

   5. A Disadvantaged/Women Business Enterprise Utilization Affirmative Action Certification signed by Mr.

      A. W. Hendry as President of the Hendry corporation. The Petitioner acknowledged on this Certification that it understood that it was required to show how the W.B.E. 2 percent goal for the Project would be met.

      
      

      The Certification also pointed out that if the D.B.E./W.B.E. Utilization Form No. 1 to be submitted with the bid did not reflect compliance with the W.B.E. goal that the Petitioner was required to submit documentation with the bid to demonstrate that the Petitioner had made good faith efforts to meet the goal.

      Finally, the Certification included the following:

      
      

      FAILURE TO SUBMIT THE DISADVANTAGED/WOMEN BUSINESS ENTERPRISE UTILIZATION FORM NO. 1 REFLECTING FULL COMPLIANCE WITH THE CONTRACT GOALS OR IF THE DISADVANTAGED/WOMEN ENTERPRISE UTILIZATION FORM NO. 1 DOES NOT REFLECT FULL COMPLIANCE WITH THE CONTRACT COALS FAILURE TO SUBMIT SUFFICIENT DOCUMENTATION TO DEMONSTRATE GOOD FAITH EFFORTS TO MEET THE GOALS WILL BE JUST CAUSE TO CONSIDER THE BID NONRESPONSIVE AND TO REJECT THE BID. THESE DOCUMENTS MUST BE SUBMITTED WITH THE BID PROPOSAL.

      
      

   6. A D.B.E./W.B.E. Utilization Form No. 1 signed by

      A. W. Hendry as President of Hendry Corporation. Two

      W.B.E. subcontractors were listed on this form: Advanced Barricade and Signing, Inc., and Markings and Equipment Corporation. The "$ Amount of Work" to be performed by Advanced Barricade and Signing, Inc., indicated on Form No.

      1 was $10,845.00. The "$ Amount of Work" to be performed by Markings and Equipment Corporation indicated on Form No.

      1 was $2,586.00. The spaces on Form No. 1 labeled "Grand Total Sublet $" and "Sub-Total of W.B.E. $" were left blank.

      
      

      The following was printed on Form 1 next to Mr. Hendry's signature:

      
      

      Failure to submit this certification or submission of a false certification or if the contract goals are not met, failure to submit sufficient documentation to demonstrate good faith efforts will be just cause to consider the bid nonresponsive and to reject the bid.

      
      

5. The Petitioner was aware of the W.B.E. goal for the Project when it prepared and submitted its bid. Therefore, prior to the submission of its bid on the Project, the Petitioner had oral and written communications concerning subcontracting with W.B.E. contractors certified by the Respondent as W.B.E. qualified. The only written communication concerning the Project received by Mr. Porterfield before the Petitioner's bid was submitted to the Respondent was from Markings and Equipment Corporation. A written communication was also received from M and M Sod

   but it was not seen by Mr. Porterfield until after the bid had been submitted. Oral quotations from M and M Sod and Advanced Barricade and Signing, Inc., were received by Mr. Porterfield prior to submission of Petitioner's bid on the Project.

   
   

6. All bids submitted to the Respondent were opened at approximately 11:00 a.m. on July 31, 1985. Based upon the total bid amount, the Petitioner was the apparent low bidder.

   
   

7. By letter dated August 20, 1985, the Petitioner received a "Notice of Switch in Apparent Low Bidder." The Notice indicated that the Petitioner had been declared nonresponsive because of its failure to meet the W.B.E. requirements of the Project. This action was consistent with the Respondent's policy of rejecting bids which fail to fully comply with W.B.E. contract goals and which fail to include sufficient documentation evidencing a good faith effort to comply with these goals.

   
   

8. The Petitioner failed to meet the W.B.E. goal for the Project because Mr. Porterfield had failed to include M and M Sod as a Potential W.B.E. subcontractor on the D.B.E./W.B.E. Utilization Form No. 1. The failure to include this potential W.B.E. subcontractor on Form No. 1 was explained as follows:

   
   

   A Because it was in the morning of the

   bid, it was a flurry of activity, and it was something I didn't double-check, and I left it off. I not only left it off, I didn't complete the form, in the totals or anything.

   
   

   Deposition of Paul E. Porterfield, page 25, lines 9-12.

   
   

9. The Petitioner had contacted M and M Sod on the day before it submitted its bid and requested a quotation. The Petitioner also contacted M and M Sod on the day it submitted its bid and was quoted a price. If the Petitioner had included M and M Sod as a W.B.E. subcontractor in its bid it would have listed the "$ Amount Work" to be performed by M and M Sod on the D.B.E/W.B.E. Utilization Form No. 1 as $8,246.00 plus some amount of markup. This amount plus the $13,431.00 actually listed on the form would have totaled $21,677.00.

10. The total amount of the bid submitted by the Petitioner was $995,948.47. This amount is $83,758.43 lower than the next lowest bid, which was submitted by the Intervenor. Two percent of the Petitioner's bid is

    $19,918.97. The total amount of work to be performed by

    W.B.E. subcontractors indicated on the D.B.E./W.B.E. Utilization Form No. 1 submitted by the Petitioner was

    $13,431.00. This amount is 1.3 percent of the total amount bid by Petitioner. This amount is not the amount which the Petitioner intended to pay to W.B.E. subcontractors. The

    $13,431.00 figure includes some amount which the Petitioner intended to keep for its own use.

    
    

    If the amount of the quotation received from M and M Sod ($8,246.00) had been included on Form No. 1, the total amount listed on the form would have been $21,677.00. This amount is more than 2 percent of the Petitioner's bid.

    This amount, however, is not the amount which the Petitioner would have actually paid to W.B.E. subcontractors. It also includes some amount which the Petitioner would have retained for itself.

    
    

    If the Petitioner had received the Project contract, it would have paid $8,246.00 to M and M Sod, $2,456.88 to Markings and Equipment Corporation and $10,740.00 to Advanced Barricade and Signing, Inc. These amounts total

    $21,442.88 and exceed 2 percent of the Petitioner's bid by

    $1,523.91.

    
    

11. The Intervenor submitted a bid on the Project in the amount $1,079,706.90. A bid was also submitted by Misener Marine Construction, Inc., in the amount of

    $1,522,890.80. The Intervenor and Misener Marine Construction, Inc., met the W.B.E. goal for the Project.

    
    

12. The Petitioner failed to meet the W.B.E. goal for the Project and failed to submit sufficient documentation to demonstrate a good faith effort to meet the goal.

    
    

13. On September 9, 1985, the Petitioner filed its Notice of Protest with the Respondent protesting the award of a contract on the Project to the Intervenor. On September 18, 1985, the Petitioner filed its formal written protest.

    
    

14. The Petitioner did not file a notice of protest or otherwise challenge the bid specifications established

    by the Respondent for the Project within 72 hours of its receipt of the bid specifications.

    
    

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Section 120.57(1), Florida Statutes (1984 Supp.).

    
    

16. The parties have stipulated, and the facts establish, that the Petitioner and Intervenor are substantially affected by the Respondent's proposed actions. Therefore, the Petitioner and Intervenor have standing to participate in these proceedings.

    
    

17. The only issue to be decided in this case is whether the bid submitted icy the Petitioner on the Project was properly rejected by the Respondent.

    
    

18. The Respondent, in awarding contracts such as the one involved in this case, "may, at its discretion, award a contract to the lowest responsible bidder, or it may reject all bids and proceed to readvertise." Section 337.02(1), Florida Statutes (1984 Supp.). See also Section 337.11(3), Florida Statutes (1984 Supp.).

    
    

19. Section 339.08(1), Florida Statutes (1984 Supp.), requires that the Respondent provide for the expenditure of moneys in the State Transportation Trust Fund by Regulation. Section 339.0805(1), Florida Statutes (1984 Supp.), requires that not less than 10 percent of amounts expended from the State Transportation Trust Fund be expended with small business concerns owned and controlled by socially and economically disadvantaged individuals, except to the extent that the Respondent determines otherwise.

    
    

20. Pursuant to the requirements of Sections 339.08(1) and 339.0805(1), Florida Statutes (1984 Supp.), the Respondent has promulgated Chapter 14-78, Florida Administrative Code. In particular, the Respondent has promulgated Section 14-78.03(2)(b), Florida Administrative Code, which provides, in pertinent part:

    
    

    (2) To implement its DBE and W8E goal program the Department may:

    . . . .

    (b) establish contract goals on each contract with subcontracting opportunities for certified DBEs and WBEs.

    1. The Department shall establish separate contract goals for firms owned and controlled by socially and economically disadvantage individuals and for firms owned and controlled by women.

    . . . .

    1. For all contracts for which DBE and WBE contract goals have been established, each bidder shall meet or exceed or demonstrate that it could not meet, despite its good faith efforts, the contract goals set by the Department. 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. [Emphasis added]

       1. The contractor's bid submission shall include the following information:

    1. The names and addresses of certified DBE and WBE firms that will participate in the contract;

    2. A description of the work each named DBE and WBE firm will perform;

    3. The dollar amount of participation by each named DBE and WBE firm.

    4. If the DBE or WBE goal is not met, sufficient information to demonstrate that the contractor made good faith efforts to meet the goals.

    
    

    This rule was properly effective May 23, 1984, and was in effect during July of 1985.

    
    

21. The facts in this ease support a conclusion that the Petitioner was the lowest bidder on the Project. The

    Petitioner, however, failed to submit its bid in full compliance with the clearly established W.B.E. goals for the Project and failed to comply with the requirements of Section 14-78.03(2)(b), Florida Administrative Code.

    
    

22. Pursuant to Section 14-78.03(2)(b), Florida Administrative Code, the Respondent established a 296

    W.B.E. goal for the Project. The Petitioner failed to establish on D.B.E./W.B.E. Utilization Form No. 1 or anywhere else in its bid that it would meet this 2% goal. The Petitioner also failed to provide sufficient information to the Respondent to demonstrate that it had made good faith efforts to meet the 2% W.B.E. goal.

    
    

23. Pursuant to Section 14-78.03(2)(b), Florida Administrative Code, and as set out in the bid, the Petitioner's failure to meet these requirements resulted in the Petitioner's bid being deemed nonresponsive and the bid was rejected.

    
    

24. Upon rejection of the Petitioner's bid pursuant to the Respondent's rules, the Intervenor's bid became the lowest responsible bid and the Respondent properly awarded the contract to the Intervenor.

    
    

25. In support of its position in this case, the Petitioner first argues that its failure to meet the W.B.E. contract goal for the Project was a "minor, technical irregularity" which should be waived by the Respondent.

    
    

26. The Petitioner's argument ignores the clearly established public policy of the State of Florida as established in Section 339.0805(1), Florida Statutes (1984 Supp.). More importantly, the Petitioner's argument ignores the portion of Section 14-78.03(2)(b), Florida Administrative Code, which provides that "[f]ailure to satisfy these requirements shall result in a contractor's bid being deemed nonresponsive and the bid being rejected." The W.B.E. requirements for the Project were not technical in nature. They were a material and significant part of the bidding process. As such, they could not be waived by the Respondent. Vito's Trucking and Excavating Company v. Department of Transportation, DOAH Case No. 84-3436 (Final Order, January 2, 1985).

    
    

27. In order for the Respondent to waive the W.B.E. requirements in this case the Respondent would have been

    required to violate its own rules and the bid specifications for the Project.

    
    

28. If it could properly be concluded that the Petitioner's failure to comply with the W.B.E. requirements for the Project was a minor, technical irregularity which should be waived, the Petitioner would prevail. The facts establish that if the Petitioner had included the quote it received from M and M Sod on the D.B.E./W.B.E. Utilization Form No. 1 submitted with its bid, the total amount shown on this form would have met the 2 percent W.B.E. goal for the Project. The facts also establish, however, that the amounts included on the form for the subcontractors which were actually listed did not constitute the amounts which were to be paid to these subcontractors. These amounts included a markup which the Petitioner intended to keep. For example, the amount quoted by Markings and Equipment Corporation was $2,456.88. The Petitioner listed the amount of Markings and Equipment Corporation's work on the D.B.E./W.B.E. Utilization Form No. 1 at $2,586.00. Section 14-78.03(2)(b), Florida Administrative Code, provides that the Respondent is to count the "total dollar value of the contract to be awarded to the certified . . . WBE . . ." in determining whether a W.B.E. goal is met.

    
    

29. At the final hearing, the Petitioner did prove the actual dollar amount to be paid to Markings and Equipment ($2,456.88), M and M Sod ($8,246.00), and Advanced Barricade and Signing, Inc. ($10,740.00). The total of these amounts--$21,442.88--is more than 2 percent of the total amount bid on the Project by the Petitioner.

    
    

30. The Petitioner has also made several arguments concerning the Respondent's authority to reject its bid because of the Petitioner's failure to meet the Project's

    W.B.E. requirements. The facts establish that the W.B.E. requirements for this Project were clearly set out in the Respondent's bid specifications for the Project. The Respondent's actions were clearly consistent with the bid specifications. The Petitioner did not protest the bid specifications. Section 14-25.04(1), Florida Administrative Code, and Section 120.53(5), Florida Statutes (1984 Supp.), provide that potential bidders must file a notice of protest of intended plans and specifications within 72 hours after receipt of the plans and specifications. The Petitioner did not file such a notice of protest. It is therefore concluded that the

    Petitioner has waived any right to challenge the actions of the Respondent in this case based upon an argument that the Respondent's actions in rejecting its bid for failure to meet the W.B.E. requirements of the Project were beyond its statutory authority.

    
    

31. Even if it were concluded that the Petitioner is not precluded from challenging the authority of the Respondent to reject its bid because the Petitioner did not timely challenge the specifications for the Project, the Petitioner's arguments concerning the Respondent's authority must be rejected. The facts do not establish, nor does the Petitioner contend, that the Respondent's actions in this case were contrary to its rules. In fact, the Petitioner has conceded that the Respondent's actions were consistent with Chapter 14-78, Florida Administrative Code. The Respondent's rules are presumed to be valid. It is therefore concluded that the Respondent, based upon the provisions of Chapter 14-78, Florida Administrative Code, had the authority to take the actions which it took in this case.

    
    

32. Finally, the Petitioner has raised several arguments questioning the validity of Section 14-78.03, Florida Administrative Code. This proceeding was initiated pursuant to Section 120.57, Florida Statutes (1984 Supp.). The Petitioner has not instituted a rule-challenge proceeding in accordance with the Administrative Procedure Act. Therefore, it must be presumed that the Respondent's rules are valid.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the bid submitted by the Petitioner, Hendry Corporation, in State Project No. 90050-3523 be rejected and that the contract be awarded to the Intervenor, Atlantic Foundation Company, Inc., as the lowest responsible bidder.

DONE and ENTERED this 15th day of November 1985, in Tallahassee, Florida.

Hearings

Hearings

LARRY J. SARTIN

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 15th day of November 1985.

APPENDIX

The parties have submitted proposed findings of fact.

It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they were accepted. Those proposed findings of fact which have been rejected and the reason for their rejection has also been noted. Paragraph numbers in the Recommended Order are referred to as "RO Petitioner's Proposed Findings of Fact:

Paragraph 1: RO 2. Paragraph 2: RO 4d.

Paragraph 3: RO 1, 3, 10 and 11.

Paragraph 4: This paragraph is rejected because it is a statement of one of the issues in this case.

Paragraph 5: RO 1.

Paragraph 6: RO 6 and 7.

Paragraph 7: RO 13.

Paragraph 8: RO 4f, 5 and 9.

Paragraph 9: RO 10.

Paragraphs 10 and 11: These paragraphs are rejected because they are statements of the law.

Paragraph 12: The first part of this paragraph is rejected because it is a statement of the law. The last part of this paragraph has been accepted in RO 4.

Paragraph 13: The first sentence of this paragraph is rejected because the proposed finding of fact is not supported by the record and it is not relevant to this proceeding. The second sentence is rejected because it is not relevant to this proceeding.

Respondent's Proposed Findings of Fact: Paragraph 1: RD 1, 3, 4, 6 and 10.

Paragraph 2: This paragraph is rejected because it is a statement of the law.

Paragraph 3: The first sentence has been accepted in RO 4. The second sentence is rejected because it is a conclusion of law.

Paragraph 4: RO 4c. Paragraph 5: RD 8 and 10.

Paragraph 6: This paragraph is rejected because it is a statement of the law.

Paragraph 7: This paragraph is rejected because the record does not establish who made notations on the D.B.E./W.B.E. Utilization Form No. 1 submitted by the Petitioner.

Paragraph 8: RO 4.

Paragraph 9: RO 1.

Paragraph 10: RO 7.

Intervenor's Proposed Findings of Fact: Paragraph 1: RO 2 and 4.

Paragraph 2: RO 4d. Paragraph 3: RO 4d. Paragraph 4: RO 4d.

Paragraph 5: This paragraph is rejected because it is a statement of the law.

Paragraph 6: RO 4e and 4f. Paragraph 7: RO 3 and 5.

Paragraph 8: RO 14.

Paragraph 9: RO 1, 3, 10 and 11.

Paragraph 10: RO1, 4f and 10.

Paragraph 11: RO 5, 8 and 9.

Paragraph 12: RD 4f and 10.

Paragraph 13: RO 1, 6, 7 and 11.

Paragraph 14: RO 7.

COPIES FURNISHED:

Kent P. Smith, Esquire Richard J. Storrs, Esquire Non-Attorney Representatives Smith & Fleming

2300 Peachtree Center Tower

230 Peachtree Street, N.W. Atlanta, Georgia 30303

Guyte P. McCord, 111, Esquire MacFarlane, Ferguson, Allison & Kelly 700 First Florida Bank Building

Post Office Box 82 Tallahassee, Florida 32302

Chris H. Bentley, Esquire Jeannette M. Andrews, Esquire Fuller & Johnson, P.A.

111 North Calhoun Street Post Office Box 1739 Tallahassee, Florida 32302

Larry D. Scott, Esquire Department of Transportation Haydon Burns Building, MS-58 Tallahassee, Florida 32301

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

Docket for Case No: 85-003338BID

Orders for Case No: 85-003338BID