Kiesling.
For Respondent: Brant Hargrove and Larry D. Scott
For Intervenor: John C. O'Rourke Jr.
The issue for determination is whether the bid of Robert F. Wilson, Inc. (Wilson), on State Project Number 87000-3696, is responsive as it relates to the Woman Business Enterprises (WBE) goal of 2 percent participation and to the good faith efforts of Wilson to meet the goal.
Wilson presented the testimony of Herbert Jaffess, Rudy Slaughter and Thadeus Fortune, together with two exhibits admitted in evidence. The Respondent, Florida Department of Transportation (DOT), presented the testimony of Juanita Moore and Rudy Slaughter, together with five exhibits admitted in evidence. The Intervenor, Archer Western Contractors, Ltd. (Archer Western), presented no witnesses or exhibits.
The transcript of the proceedings was filed on January 24, 1986. The parties filed proposed Orders which have been considered herein. A ruling has been made on each proposed finding of fact in the Appendix attached hereto and made a part of this Recommended Order.
State Project Job No. 87000-3696 calls for the construction of the Sixth District Office Building in Miami, Florida, at the intersection of State Road 836 and State Road 821. On October 30, 1985, DOT accepted and opened five sealed bids on State Project No. 87000-3696. At the bid opening, Wilson's bid of
$2,021,573.80 was the apparent low bid. Archer Western's bid of
$2,055,491 was the next lowest bid. The amount of both of these bids were within the estimate of DOT. The apparent low bidders determined solely by the lowest dollar amount bid, was Wilson, whose bid was the apparent low bid by $33,917.20.
Pursuant to Rule 14-78.03, Florida Administrative Code, DOT set Disadvantaged Business Enterprise (DBE) and WBE participation requirements in the bid documents for this project with a contract goal that 10% of the contract be performed by DOT certified DBEs and that 2% of the contract be performed by DOT certified WBEs.
Subarticle 2-5.3.2; as amended of the bid documents provides:
For all contracts for which DBE and/or WBE contract goals have been established each contractor 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.
It also states that only DOT certified WBEs may be counted toward WBE goals.
Subarticle 205.3.3, as amended, of the bid documents provides:
In evaluating a Contractor's good faith efforts the Department will consider:
Whether the Contractor at least seven days prior to the letting, provided written notice by certified mail return receipt requested or hand delivery with receipt, to all certified DBEs and WBEs which perform the type of work which the Contractor intends to subcontract, advising the DBEs and WBEs (a)
of the specific work the Contractor intends to subcontract; (b) that their interest in the contract is being solicited; and (c) how to obtain information about and review and inspect the contract plans and specifications.
Whether the Contractor selected economically feasible portions of the work to be performed by DBEs and WBEs including where appropriate, breaking down contracts or combining elements of work into economically feasible units. The ability of a contractor to perform the work with its own work force
will not in itself excuse a contractor's failure to meet contract goals.
Whether the Contractor provided interested DBEs or WBEs assistance in reviewing the
contract plans and specifications.
Whether the DBE or WBE goal was met by other bidders.
Whether the Contractor submits all quotations received from DBEs or WBEs, and
for those quotations not accepted, an explanation of why the DBE or WBE will not be used during the course of the contract.
Receipt of a lower quotation from a non-DBE or non-WBE will not in itself excuse a contractor's failure to meet contract goals.
Whether the Contractor assisted interested DBEs and WBEs in obtaining any required bonding, lines of credit, or insurance.
Whether the Contractor elected to subcontract types of work that match the capabilities of solicited DBEs or WBEs.
Whether the Contractor's efforts were merely pro forma and given all relevant circumstances, could not reasonably be expected to produce sufficient DBE and WBE participation to meet the goals.
Whether the Contractor has on other contracts within the past six months utilized DBEs and WBEs.
The above list is not intended to be exclusive or exhaustive and the Department will look
not only at the different kinds of efforts that the Contractor has made but also the quality, quantity and intensity of these efforts.
Wilson indicated on the D.B.E./W.B.E. Utilization Form No. 1, which form was part of the bidding documents, that it intended to use a WBE contractor to perform 2% of the contract amount and DBE contractors to perform 20% of the contract amount. Wilson did not indicate on the Form whether the DBEs and WBE were DOT certified. In actuality, only 1.6% of the contract amount was to be performed by the WBE. Additionally, the WBE contractor and two of the DBE contractors were not certified by DOT and therefore did not count toward the contract goals. Fifteen percent of the contract amount was to be performed by DOT certified DBEs and 0% was to be performed by WBEs in the bid proposal of Wilson.
The D.B.E./W.B.E. Utilization Form No. 1 directs the bidder that "If full compliance with the contract goals for this project are not met; submit sufficient documentation with the bid proposal to demonstrate that good faith efforts were made to meet the goals. This form also instructs the bidder that failure to submit sufficient documentation to demonstrate good faith efforts
will be just cause to consider the bid nonresponsive and to reject the bid.
The good faith efforts evaluation of a bid proposal is undertaken by DOT when a potential contractor has not met the WBE of DBE goals for a particular project.
Failure to submit sufficient documentation of good faith efforts when a DBE/WBE goal is not met is just cause for DOT to consider a bid to be non-responsive. Wilson knew that if it did not follow the bid specifications that its bid would be deemed by DOT to be non-responsive.
Wilson submitted a good faith efforts package with its bid to establish its attempt to meet the DBE and WBE goals. This package contained a letter dated October 28, 1985, in which Herbert Jaffess Wilson's Chief Estimator explained Wilson's efforts to obtain bids from DBE and WBE subcontractors. These efforts were to: 1) advertise in the Miami Herald for three days regarding a desire for these bids; 2) telephone DBEs and WBEs to request bids and to advise them that Wilson would help them; 3) mail letters to 32 DBEs regarding bids; and 4) list its name in the Dodge reports on a number of days as one of the interested bidders on this project. Mr. Jaffess further stated that it is the policy of Wilson "to employ the lowest bidder on a project; provided they are sufficiently experienced and are financially responsible, regardless of any other consideration."
DOT personnel evaluated Wilson's bid and good faith efforts documentation in accordance with the bid documents. That evaluation found that the subcontractor listed in Wilson's bid as a WBE would only perform 1.6 percent of the work and that it was not DOT certified. Additionally; Wilson's good faith efforts documentation was insufficient to establish Wilson's good faith efforts for the following reasons: 1) only three of the DBEs and
A WBEs to whom letters were mailed were DOT certified; 2) Wilson did not indicate when the letters were mailed; 3) Wilson did not solicit all DOT certified WBEs in the areas of work available for this project; 4) two of the five bidders met the DBE and WBE goals on this project; and 5) Wilson's failure to submit information concerning the other inquiries delineated in the bid documents in this regard. DOT also found that Wilson did not have a history revealing that it had on other contracts within the past six months utilized DBEs and WBEs. Consequently, Wilson's bid was deemed nonresponsive and was rejected.
Wilson's bid submission did identify all DBE and WBE firms, whether or not certified by the DOT; that were to participate in the contract; did describe work each named DBE and WBE would perform with request to the contract; and did specify the dollar amount of participation by each named DBE and WBE firm participating in the contract. However the bid did not achieve the WBE goals even if the non-DOT certified WBE was included.
Wilson's good faith efforts submission included a letter from Herb Jaffess dated October 28, 1985, to the DOT detailing Wilson's efforts to obtain DBE and WBE subcontractors, including the placement of ads in The Miami Herald, calling or writing to 40 DBE or WBE firms (few of which were DOT certified), seeking their participation in the contract; and notice of the contract bidding in the Dodge Reports.
The Dodge Reports is an industry report which includes a daily listing of contracts out for bid that allows subcontractors to know what projects are being bid and which contractor is preparing a proposal for any particular project.
Wilson's good faith submission indicated that it wrote letters to DBEs and WBEs soliciting their participation as subcontractors on the bid for the construction of the Sixth District Office Building, however, Wilson did not send the letters certified mail, return receipt requested, and did not submit receipts to show the letters were mailed.
Wilson's good faith submission indicated that the solicited DBEs and WBEs were informed how to obtain information about and how to review and inspect the contract plans and documents. However potential DBE and WBE bidders were merely told that the plans and documents were available for inspection at Wilson's office.
Wilson's bid submission indicated that it selected economically feasible portions of the work to be performed by the DBE and WBE firms, however, Wilson did not submit all quotations received from DBEs and WBEs and for those quotations not accepted, did not submit an explanation of why the DBE or WBE was not used.
Wilson did not meet the goal for the project, but two contractors did. Archer Westerns the second low bidders met the goals with 10.6% participation for DBEs and 4.2% participation for WBEs.
Wilson's bid submissions including the good faith submission did not comport with the requirements of the bid specifications. Therefore DOT could not deem Wilson's bid to be responsive.
DOT notified Wilson by letter dated November 18, 1985, that Wilson's bid had been declared nonresponsive due to its failure to meet WBE requirements.
On December 9, 1985, DOT, posted in Tallahassee an intent to award the contract for this project to Archer Western.
No federal funds are involved in this project.
On December 31, 1985, the Final Order in Capeletti Brothers, Inc. v. DOT, DOAH Case No. 85-3340R, was rendered, declaring Rule 14-78, Florida Administrative Code, invalid as to projects in which no federal funds would be expanded. On January 15, 1986, DOT filed timely Notice of Appeal from this Final Order.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the parties to an the subject matter of these proceedings. Section 120.57(1), Florida Statutes.
DOT adopted Chapter 14-78, F.A.C., to implement an affirmative action program for maximum participation by women and socially and economically disadvantaged individuals in the performance of contracts let by DOT. Chapter 14-78 mandates DOT to establish DBE and WBE goals and permits DOT to implement these goals by; inter alias establishing goals on each contract with subcontracting opportunities for certified DBEs and WBEs. Rule 14-78.03 provides in pertinent part:
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.
The Contractor's bid submission shall include the following information:
i. The names and addresses of certified DBE and WBE firms that will participate in the contract; in the contract;
* * *
iv. If the DBE or WBE goal is not met, sufficient information to demonstrate that the contractor made good faith efforts to meet the goals.
In evaluating a contractor's good faith efforts, the Department will consider:
Whether the contractor, at least seven days prior to the letting, provided written notice by certified mail, return receipt requested, or hand delivery, with receipt, to all certified DBEs and WBEs which perform
the type of work which the contractor intends to subcontract advising the DBEs and WBEs
1) of the specific work the contractor intends to subcontract; 2) that their interest in the contract is being solicited; and 3) how to obtain information about and review and inspect the contract plans and specifications.
Whether the contractor selected economically feasible portions of the work to performed by DBEs or WBEs, including where appropriate, breaking down contracts or combining elements of work into economically feasible units. The ability of a contractor to perform the work with its own work force will not in itself excuse a contractor's failure to meet contract goals.
Whether the contractor provided interested DEBs or WBEs assistance in reviewing the contract plans and specifications.
Whether the DBE or WBE goal was met by other bidders.
Whether the contractor submits all quotations received from DBEs or WBEs and for
those quotations not accepted, an explanation of why the DBE or WBE will not be used during the course of the contract. Receipt of a lower quotation from a non-DBE or non-WBE will not
in itself excuse a contractor's failure to meet contract goals.
Whether the contractor assisted interested DBEs and WBEs in obtaining any required
bonding, lines of credit, or insurance.
Whether the contractor elected to subcontract types of work that match the capabilities of solicited DBEs or WBEs.
Whether the contractor's efforts were merely pro forma and given all
relevant circumstances, could not reasonably be expected to produce sufficient DBE and WBE participation to meet the goals.
Whether the contractor has no other contracts within the past six months utilized DEBs and WBEs.
This list is not intended to be exclusive or exhaustive and the Department will look not only at the different kinds of efforts that the contractor has made but also the quality, quantity and intensity of these efforts.
This rule was in effect and was incorporated into the contract and bid documents for the project in question. The terms of the rule were made a material part of the contract.
In this case, the burden of proof is on Wilson to show, by a preponderance of the evidenced that it either met the WBE goal of 2% participation or that it made good faith efforts to meet the goal. The failure to satisfy the WBE requirements forms the basis for rejecting a contractor's bid as nonresponsive.
Wilson's bid submission did not meet the WBE goal of 2% participation. Wilson proposed only 1.6% participation by a WBE and that WBE was not certified by DOT as required by the rule and the contract. Additionally, the good faith submission by Wilson at the time of the bidding failed to meet the good faith requirements of the rule and the contract. The good faith submission did not show that Wilson provided written notice soliciting bids by certified mail return receipt requested to certified WBEs. While Wilson submitted a letter with its bid
explaining its good faith efforts, it showed that Wilson wrote to and called approximately 40 DBEs and WBEs only a few of which were certified by DOT. Wilson submitted no good faith documentation that it selected economically feasible portions of the work to be performed by DBEs or WBEs or that it broke down the contracts to create economically feasible units. Wilson's good faith submission did not include bid quotes from WBEs that were not accepted and it did not explain why it had not accepted quotations offered by WBEs. Therefore, Wilson's good faith submission failed to satisfy the delineated criteria regarding good faith efforts.
While the specifications and the rule state that the delineated criteria are not exclusive or exhaustive, Wilson did not submit, with its good faith submission, any documentation of efforts to secure WBE participation beyond the delineated criteria.
Therefore, it is concluded that the good faith submission by Wilson did not satisfy the burden of showing good faith efforts to secure WBE participation and Wilson's bid was nonresponsive.
At hearing Wilson supplemented the good faith submission with testimony and explanation regarding good faith efforts which were not documented or included in the good faith package submitted with the bid. While this is a de novo hearing, proceedings involving bid disputes cannot properly include consideration of additional information regarding good faith efforts which was not submitted with the bid. To permit otherwise would open the door to abuses which competitive bidding, statutes and rules were designed to prevent. Harry Pepper and Associates
v. City of Cape Coral, 352 So.2d 1190, 1193 (Fla. 2d DCA 1978). Allowing supplementation of already opened bids would give the bidder a chance to undercut the low bidder or to otherwise supplement his bide thereby giving a competitive advantage over the other bidders. E. M. Watkins & Company v. Board of Regents,
414 So.2d 583, 587 (Fla. 1st DCA 1982). To allow Wilson to now expand on the good faith information submitted with the bid would give an unfair competitive advantage over the other bidders. The question here is whether Wilson's bid was responsive at the time the bids were opened. By virtue of the definition of responsiveness in the rule and the specifications, a finding of nonresponsiveness of the bid submission itself is enough to reject the bid. See Baxter's Asphalt and Concrete, Inc. v. D.O.T., 475 So.2d 1284; 1286 (Fla. 1st DCA 1985).
Also at issue in this proceeding is the effect of Capeletti Brothers, Inc. v. D.O.T., DOAH Case No. 85-3340R; Final Order entered December 31, 1985, which holds Rule 14-78.03 invalid insofar as it purports to authorize DOT to establish and enforce
WBE goals on contracts under which no federal funds are expanded. DOT has timely filed Notice of Appeal from that Final Order.
Section 120.56(3), Florida Statutes, provides in pertinent part:
(3) . . . The hearing officer may declare all or part of a rule invalid. The rule or part thereof declared invalid shall become void when the time for filing an appeal expires or at a later date specified in the decision.
Additionally, Rule 9.310(b)(2) of the Florida Rules of Appellate Procedure provides that if a state department or agency appeals from a decision which declared a rule invalid, the timely filing of a notice of appeal shall automatically operate as a stay pending review, unless the stay is vacated on proper motion. In the present case, the stay has not been vacated.
It must be concluded that Rule 14-78.03 was not void at the time of hearing under the terms of Section 120.56(3). Once the Notice of Appeal was filed, even though this event occurred after the formal hearings the effect of the ruling in Capeletti Brothers, supra, is stayed. Therefore, the terms of Rule 14-78.03 are applicable to the present case. The WBE participation contract goals and requirements for this project are also valid and enforceable parts of the bid documents.
While being the apparent low bidder Wilson's bid submission was nonconforming with the bid specifications and was therefore nonresponsive. DOT was not arbitrary and capricious when it deemed Wilson's bid to be nonresponsive.
