STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

1. J. STRICKLAND CONSTRUCTION, INC., )

   )

   Petitioner, )

   )

   vs. ) CASE NO. 86-0787BID

   )

   DEPARTMENT OF TRANSPORTATION, )

   )

   Respondent. )

   )

   
   

   RECOMMENDED ORDER

   
   

   For Petitioner: P. Joseph Wright, Esquire, of Orlando For Respondent: Larry D. Scott, Esquire, of Tallahassee

   The final hearing in this case was held in Tallahassee, on March 24, 1986.

   1/ The issue is whether Petitioner, E. J. Strickland Construction, Inc. (Petitioner), is a responsible bidder on State Project No. 75030-3518.

   Specifically, the issue is whether Petitioner's bid documents a good faith effort to meet the D.B.E. goals on State Project No. 75030-3518.

   
   

   EVIDENTIARY MATTERS

   
   

   Joint Exhibits 1-4 were offered and received in evidence.

   
   

   Petitioner offered in evidence Petitioner's Exhibits 1-15. The Department of Transportation (Department), objected to Petitioner's Exhibits 6, 11 and 13- 15, and ruling was reserved.

   
   

   The Department's primary objection to the admissibility of Petitioner's Exhibits 6, 11 and 13-15 is that they are irrelevant. The Department contends that evidence not contained in Petitioner's bid documents are irrelevant.

   Petitioner, meanwhile, contends that the evidence is relevant and admissible because this is a de novo administrative proceeding.

   
   

   As reflected in the Conclusions Of Law, neither party is entirely correct. While this is a de novo administrative proceeding, the issues are defined by the pertinent law. The pertinent law defines the issue as the sufficiency of Petitioner's bid documents. The issue is not expanded simply because this is a de novo administrative proceeding. On the other hand, evidence which helps explain or interpret Petitioner's bid documents or explains why they do not contain certain information should be received in evidence because of the de novo nature of this proceeding.

   
   

   Petitioner's Exhibit 6 helps explain Petitioner's bid document. It also was not available for use at the time Petitioner submitted its bid document. For that reason, it is admissible and is received in evidence.

   Petitioner's Exhibit 11 was available at the time Petitioner submitted its bid documents. However, along with Petitioner's Exhibits 13-15, it is relevant to Petitioner's attempt to explain why the bid documents did not contain additional evidence of good faith. For that reason, Petitioner's Exhibits 11 and 13-15 also are admissible and are received in evidence, along with all other Petitioner's Exhibits.

   
   

   Respondent's Exhibits 1-3 also were received in evidence.

   
   

   FINDINGS OF FACT

   
   

   1. Petitioner, E. J. Strickland Construction, Inc. (Petitioner), submitted to Respondent, Department of Transportation (Department), a bid on State Project No. 75030- 3518. Petitioner's was the lowest bid received by the Department.

      
      

   2. Petitioner's bid failed to meet the D.B.E. goals on State Project No. 75030-3518. The D.B.E. goal was 12 percent; under Petitioner's bid, only .04 percent of the contract would be performed by economically disadvantaged business enterprises.

      
      

   3. The only effort Petitioner made to secure bids of certified D.B.E. contractors to incorporate in its bid to the Department was to run a legal advertisement in the Orlando Sentinel on January 18, 19 and 20, 1986. The Department was scheduled to open all bids on January 22, 1986. Petitioner documented only the advertisements and the fact that it incorporated the only response to the advertisements in its bid in an effort to demonstrate good faith effort to meet the D.B.E. goals. 2/

      
      

   4. There is no evidence that Petitioner acted with specific discriminatory intent in preparing its bid on State Project No. 75030-3518. Petitioner proved that it acted in this case precisely as it acted in the only other Department job on which it bid. In that case, Petitioner ordered from the Department plans and specifications and was sent plans, specifications and a bid package and was placed on the Department's list of prospective bidders. In accordance with the custom in the industry, the Florida Transportation Builders Association (FTBA) obtained from the Department the list of prospective bidders as of ten days before the bid letting date and distributed the list to its members. In accordance with the custom in the industry, several DBE and WBE contractors contacted Petitioner, verified that Petitioner was bidding on the project and submitted proposals for inclusion in Petitioner's bid. In that way, Petitioner received enough response from certified DBE and WBE contractors to meet the DBE and WBE goals on the job.

      
      

   5. In this case, in accordance with the Department's normal practice, the Department only sent Petitioner plans and specifications in response to Petitioner's December 30, 1985 request for plans and specifications. Also, since Petitioner did not specifically request a bid package, the Department did not include Petitioner on its list of prospective bidders. For that reason, no FTBA members, including the certified DBE contractor who bid on Petitioner's previous job with the Department, received notice that Petitioner was a prospective bidder on State Project No. 75030-3518. Had Petitioner been included on the FTBA list, Petitioner probably would have received enough response from certified DBE contractors to meet the DBE goals on this job, too.

      
      

   6. All four of the other bidders on State Project No. 75030-3518 met the DBE goals. One of them relied entirely on the FTBA list to notify prospective

      certified DBE contractors. One of them -- including the next lowest bidder, Cone Constructors, Inc. -- also sent a written request for a proposal to Pary, Inc., the same certified DBE contractor who previously had contracted with Petitioner on a Department job that was still ongoing. Another of the bidders on State Project No. 75030-3518 telephoned Pary, Inc., and asked for a proposal.

      
      

   7. Petitioner is not a member of the FTBA and did not inquire whether it was listed as a prospective bidder on the FTBA list. Petitioner did not make any effort to use the Department's DBE directory to directly contact certified DBE contractors concerning the job. Petitioner did not even contact Pary, Inc., to request a bid although Pary, Inc., was working for Petitioner at the time and had not responded to Petitioner concerning State Project No. 75030-3518.

      
      

   8. Petitioner's small effort to meet the DBE goals on State Project No. 75030-3518 did not rise to the level of good faith efforts. The evidence that Petitioner acted in this case precisely as it acted in the only other Department job on which it bid does not prove that Petitioner made a good faith effort in this case. To the contrary, it proved only that Petitioner was lucky to meet the DBE goals on the prior contract.

      
      

      CONCLUSIONS OF LAW

      
      

   9. Section 339.081, Florida Statutes (1985), requires the Department of Transportation (Department) to spend at least 10 percent of the amount expended from the State Transportation Trust Fund on small business concerns owned and controlled by socially and economically disadvantaged individuals. To implement this legislative mandate, the Department adopted Chapter 14-78, Florida Administrative Code, to achieve participation by women and socially and economically disadvantaged individuals in the performance of contracts let by the Department.

      
      

   10. Rule 14-78.O3(2)(b), Florida Administrative Code provides in pertinent part:

       
       

       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 goal set forth by the Department. The DBE and WBE participa- tion 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 bidding being rejected.

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

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

                the contract;

             2. A description of the work each named DBE

                and WBE 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 goal. (Emphasis added.)

             
             

   11. Under McDonald v. Department of Banking and Finance 346 So.2d 569 (Fla. 1st DCA 1977), and its progeny, this is a de novo administrative proceeding. However, the issues to be determined in the proceeding are defined by the pertinent law. The de novo nature of this proceeding does not expand the issues to be determined. Cf. Gulf Court Nursing Center v. Department of Health and Rehabilitative Services 10 FLW 1983 (Fla. 1st DCA August 23, 1985), clarified on rehearing, 11 FLW 437 (February 14, 1986).

       
       

   12. In this case, Rule 14-78.03(2.)(b), Florida Administrative Code, defines the issue to be whether Petitioner's bid submission includes sufficient information to demonstrate that Petitioner made good faith efforts to meet the DBE goal. The evidence relevant to this issue is the bid submission itself and extrinsic evidence which explains or clarifies the bid submission or explains the absence of information in the bid submission.

       
       

   13. In this case, Petitioner was able to prove the information contained in its bid submission and explained the reasons why more was not included in the bid submission. However, Petitioner's evidence was insufficient to prove that its bid submission demonstrated Petitioner's good faith efforts to meet the DBE goal.

       
       

   14. Rule 14-78.03(2)(b)4.b., Florida Administrative Code provides in pertinent part:

b. In evaluating a contractor's good faith efforts, the Department will consider:

1. 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 specifica- tions.

2. Whether the contractor selected economically feasible portions of the work to be 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.

3. Whether the contractor provided

   interested DBEs or WBEs assistance in reviewing the contract plans and specifi- cations.

4. Whether the DBE or WBE goal was met by other bidders.

5. 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.

6. Whether the contractor assisted interested DBEs or WBEs in obtaining any required bonding, lines of credit, or insurance.

7. Whether the contractor elected to subcontract types of work that match the capabilities of solicited DBEs or WBEs.

8. 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.

9. Whether the contractor has on other contracts within the past six months utilized DBEs 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.

As to consideration i., Petitioner provided ineffective notice and did not increase its effort despite the poor response to its newspaper advertisement. Although Petitioner appears to have complied with the second, third, fifth, sixth and seventh considerations ii., iii., v., vi., and vii., to the extent necessary, compliance with those considerations took little effort and do not counterbalance Petitioner's failure to comply with consideration i. under the circumstances. As to consideration iv., the DBE goal was met by all other bidders in this case. Consideration ix. is relatively unimportant in this case since Petitioner has participated in only one other Department contract. (Petitioner utilized DBE and WBE contractors on that job which was let more than six months before the letting in this case but was still ongoing at the time of the letting in this case.) Finally, regarding consideration viii., looking at the different kinds, quality, quantity and intensity of Petitioner's efforts, it was found and is concluded that Petitioner's efforts were merely pro forma and, given all relevant circumstances, should not reasonably have been expected to produce sufficient DBE participation to meet the DBE goals.

RECOMMENDATION

Based upon the foregoing Findings Of Fact and Conclusions Of Law, it is RECOMMENDED that Respondent, Department of Transportation, dismiss the bid protest of Petitioner, E. J. Strickland Construction, Inc., and award the contract in State Project No. 75030-3518 to the lowest responsive bidder, Cone Constructors, Inc.

RECOMMENDED this 25th day of April, 1986, in Tallahassee, Florida.

J. LAWRENCE JOHNSTON Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 25th day of April, 1986.

ENDNOTES

1/ A transcript of the final hearing was ordered by the parties and was filed on April 4, 1986. The parties asked for and received until April 14, 1986, in which to file proposed recommended orders.

2/ Petitioner's documentation did not actually specify that the legal advertisements were run in the Orlando Sentinel. However, over the Department's objection, it is now ruled that evidence to that effect is admissible and relevant to explain the documentation that was submitted with Petitioner's bid. In any event, absence of the identification of the Orlando Sentinel in the bid documentation is not the reason for the failure of Petitioner's effort to reach the level of a good faith effort to meet the D.B.E. goals.

APPENDIX TO RECOMMENDED ORDER, CASE NUMBER 86-0787BID

1. Rulings on Petitioner's Proposed Findings of Fact

   
   

   1. The substance of the following proposed findings of fact are accepted as substantially factually accurate and are incorporated in the Findings Of Fact in the same or similar format to the extent necessary: 3-6, 8, 15, 16, and 18- 20.

   2. The following proposed findings of fact would be included in paragraph

      1 above but were omitted from the Findings Of Fact as subordinate and unnecessary: 1 and 9-13.

   3. Proposed finding of fact 2 would be included in paragraph 1 above except that it is contrary to the greater weight of the evidence and/or Findings Of Fact that Petitioner ordered the bid package on December 30, 1985 or that Petitioner's request on December 30, 1985 was sufficient to receive the bid package "in accordance with . . . past experience with the DOT

      . . . ."

   4. Proposed finding of fact 7 would be included in paragraph 1 above except that it is unnecessary.

   5. Proposed finding of fact 14 would be included in paragraph 1 above except that it is contrary to the greater weight of the evidence and/or Findings Of Fact that Petitioner ordered bid documents on December 30, 1985.

   6. Proposed finding of fact 21 would be included in paragraph 1 above except that the last sentence is contrary to the greater weight of the evidence and/or Findings Of Fact.

   7. Proposed finding of fact 22 would be included in paragraph 1 above except that the last two sentences are subordinate and unnecessary.

   8. Proposed finding of fact 23 would be included in paragraph 1 above except that the first two sentences are contrary to the greater weight of the evidence and/or Findings Of Fact.

   9. Proposed finding of fact 17 is rejected are argument and irrelevant.

   
   

2. Rulings on Department's Proposed Findings of Fact

1. The substance of the following proposed findings of fact are accepted as substantially factually accurate and are incorporated in the Findings Of Fact in the same or similar format to the extent necessary: 1-5 and 10-12.

2. The following proposed findings of fact would have been included in paragraph 1 above except that the are subordinate and unnecessary: 8 and 9 (also conclusions of law), and 13.

3. Proposed findings of fact 6 and 14 are rejected as conclusions of law.

4. Proposed finding of fact 7 appears to be a conclusion of law and is therefore rejected. To the extent that it might propose a finding of fact, it is rejected because it is contrary to the greater weight of the evidence and/or Findings Of Fact that submittal of Utilization Form #1 can never be sufficient to demonstrate good faith effort.

COPIES FURNISHED:

Roger A. Kelly, Esquire

P. Joseph Wright, Esquire

P. O. Box 3587

Orlando, Florida 32802-3587

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

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

A. J. Spalla General Counsel

Department of Transportation Haydon Burns Building Tallahassee, Florida 32301

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION

E. J. STRICKLAND CONSTRUCTION, INC., Petitioner

vs. Case No. 86-0787BID

DEPARTMENT OF TRANSPORTATION,

Respondent.

/

FINAL ORDER

The final hearing in this case was held in Tallahassee, on March 24, 1986.

The issue is whether Petitioner, E. J. Strickland Construction, Inc. (Petitioner), is the lowest, responsible bidder on State Project No. 75030-3518. Specifically, the issue is whether Petitioner's bid documents evidence a good faith effort to meet the Disadvantage Business Enterprise (D.B.E.) goals on State Project No. 75030-3518, since Petitioner failed to obtain sufficient DBE subcontractors to meet the goal.

A complete review of the entire record in this matter has been made. The Recommended Order of the Hearing Officer is attached and such findings and conclusions of law which are not rejected herein are adopted. The following Findings of Fact and Conclusions of Law of the Hearing Officer are determined to not be based on competent, substantial evidence:

Findings of Fact No. 5: The third and fourth sentences of this finding are rejected since they are not based upon competent, substantial evidence and appear to be mere speculation on the part of the Hearing Officer. There was competent, substantial evidence to support a finding that the Florida Department of Transportation (Department) did not include petitioner on its list of prospective bidders and the FTBA list did not include Petitioner, but there was no evidence received at the hearings to what the 280 or so members of the FTBA knew concerning the Petitioner's status as a prospective bidder.

Finding of Fact No. 6: This finding of fact is not based on competent, substantial evidence and is rejected in its entirety. There were only three other bids submitted on State Project No. 75030-3518. All of the other three bidders met or exceeded the D.B.E. goal. (Joint Exhibit No. 2). At least two of the other three bidders requested quotes from D.B.E. contractor directly. (Transcript 101, 102) Petitioner's Exhibit 13, p.4, p.10, p.11, p.18)

Conclusion of Law No. 4: This conclusion of law is rejected to the extent that it infers that evidence extrinsic to the bid itself may be used to supplement the bid submitted at the time of be letting. The minority subcontracting provisions are a material part of the bid which are designed to

prevent bid shopping and which can effect competition between bidders. By rule and specification the Department has required this information to be submitted with be bid. This specification was developed to prevent competitive advantage, insure the quality of the subcontractors, insure public confidence in be bidding

process, and encourage future competition. To allow supplementation of be bid through the hearing process, would defeat the whole purpose of the bid procedures. See E. M. Watkins & Company". Board of Regents, 414 So.2d 583, (Fla. 1st DCA 1982).

Conclusion of Law No. 6: This conclusion of law is rejected to the extent that it implies the Petitioner complied with the various paragraph of Rule 14.78.03(2)(b)4.b. Florida Administrative Code. As is stated in the rule, be list of actors to be considered in evaluating Petitioner's good faith efforts is not exclusive. The Information demonstrating be good faith efforts of the Petitioner is to be submitted with its bid proposal.

Through he information submitted with the bid proposal, the Department's Good Faith Efforts Committee evaluates the Petitioner's efforts to meet the

D.B.E. goals specified. Inasmuch as the Petitioner did not submit the required documentation with the bid, the Committee was unable to make a determination that the Petitioner had made a satisfactory good faith effort.

There was competent, substantial evidence received at the hearing to show that although the Petitioner placed a newspaper advertisement soliciting bids four days before the bid letting, the Petitioner had previously recognized that a certain, known barrier to participate by subcontractor was the lack of response when requested to bid. (Joint Exhibit 1, E. J. Strickland Construction, Inc. D.B.E./W.B.E. Affirmative Action Plan). Despite this recognition of lack of minority response to requests for subcontractor quotes, Petitioner took no other affirmative action to attempt to secure bids from D.B.E.'s.

As the Hearing Officer concluded, Petitioner's efforts were merely pro forma and, given all relevant circumstances, should not reasonably have been expected to produce sufficient D.B.E. participation to meet the D.B.E. goals.

A complete review of the Exceptions to the Recommended Order by the Petitioner, E. J. Strickland Construction, Inc., has been made:

Exception No. 1. While the evidence showed that Petitioner ran a legal advertisement in the Orlando Sentinel on January 18, 19, and 20, 1986, in an effort to secure quotes from certified D.B.E. contractors and that Petitioner incorporated the only response to the advertisement in its bid, Petitioner nevertheless failed to meet the threshold requirements of the require good faith effort set forth in Section 14-78.03(2)(b), Florida Administrative Code. As noted in that section, Failure to satisfy these requirements shall result in a contractor's bid being deemed nonresponsive and the bid being rejected. The evidence at the hearing of the Chairman of the Good Faith Efforts Review Committee, Keith Pitchford, revealed that, of the nine specified criteria in determining whether a contractor's good faith effort was sufficient to satisfy the requirements of Section 14-78.03(2)(b), the Petitioner's documented efforts did not indicate compliance in any of the required areas. (Transcript p. 95, 104)

It is immaterial to these findings that Petitioner believed that its legal advertisement would result in the required D.B.E participation.

Exception No. 2. The evidence presented at the hearing showed that Petitioner acted in this case precisely as it had acted in the only other Florida Department of Transportation job on which it bid. In both instances, Petitioner mailed checks covering the costs involved and indicated on the face

of the checks they were for "Plans and Specifications." (P. Exhibit No. 3 and No. 4). However, competent, substantial evidence was received that the regular business practice of the Respondent is to provide contractors with plans and specifications or plans and bidding documents, depending on which is requested. If plans and bidding documents are requested, the contractor's qualifications are then ascertained before sending the bidding documents. (Transcript p. 86)

There was no evidence received as to the regular business practice of a either county or city governments in regards to furnishing plans, specifications and bid package to qualified general contractors. The Hearing Officer's findings of fact are supported by competent, substantial evidence.

Exception No. 3. Again, the evidence received at the hearing was competent, substantial evidence to show that the regular business practice of the Department was to send to qualified contractors whatever they requested, in this particular instance, plans and specifications. It was also the regular business practice of the Department to mail a list of the contractors who have been issued a proposal as of that date to construction industry exchanges ten days prior to each letting. (Transcript p. 79)

There was no competent, substantial evidence received at the hearing to show that the Petitioner would have received enough responses from certified

D.B.E. contractors, as a result of being included on any list, to meet the

D.B.E. goals. Any other conclusion would be mere conjecture or speculation.

Exception No. 4. There was competent, substantial evidence received at the hearing which showed that the other three bidders on State Project 75030-3515: Cone Constructors, Inc.; Basic Asphalt & Construction Corp.; and K & L Contractors, Inc., met the D.B.E. goals.

As to Petitioner's exception that had it appeared on the FTBA list it would have received a subcontract proposal from Pary, Inc. (citing Petitioner's Exhibit 13 at 6 in support), the evidence reveals that Pary, Inc., did in fact submit bids to each of the other three bidders and that Pary, Inc., had received requests for quotes from each of the three. (Petitioner's Exhibit 13 at 4).

The competent, substantial evidence does show that when Petitioner did not receive any response from its newspaper advertisement, it did not ever request a quota from Pary, who was at the time working for the Petitioner on another Department of Transportation job.

Exception No. 5. A review of the complete record in this case reveals that the Petitioner believed the D.B.E. requirements would be satisfied by running an advertisement In the Orlando Sentinel requesting bids. (T. 33). The record also reveals that the Petitioner was aware it did not satisfy the D.B.E. requirements and attached a copy of the newspaper advertisement to document its good faith effort.

The record also reveals that one condition of being deemed nonresponsive and having the bid rejected, is the failure of a bidder in satisfying the good faith effort requirements of Section 14-78.03(2)(b), Florida Administrative Code. It Is required by this section that if the D.B.E. goal is not mat, which is the case here, sufficient information to demonstrate that the contractor made good faith efforts to meat the goals must be submitted.

Section 14-78.03(2)(b)4.b.i-ix, F.A.C., sets forth nine nonexclusive criteria against which a contractor's good faith efforts will be evaluated. These criteria include: whether the contractor, at least seven days prior to

the letting, provided written notice to all certified D.B.E.'s which perform the type of work which the contractor intends to subcontract; whether the contractor selected economically feasible portions of the work to be performed by the D.B.E's; whether the contractor provided assistance in reviewing the contract plans and specifications to interested D.B.E's; whether the D.B.E. goal was mat by other bidders; whether the contractor's efforts ware merely pro forma and could not reasonably be expected to produce sufficient D.B.E. participation; and whether the contractor has utilized D.B.E's in the past six months on other contracts. The rule also provides that the list is not to be exclusive or exhaustive and that the Department will look not only at the different kinds of efforts but also the quality, quantity and intensity of these efforts.

A further review of the record reveals that Petitioner's good faith efforts submittal was reviewed and declared to be nonresponsive because the Petitioner failed to provide adequate documentation. (Transcript p. 104)

The evidence is not competent or substantial to establish that Petitioner efforts met the requirements for Good Faith Efforts contained in the rule.

Exception No. 6. The Petitioner presented competent, substantial evidence that its and good faith effort consisted of solely placing an advertisement in the Orlando Sentinel. However, the evidence was insufficient to satisfy the requirements of Section 14-7 .03(2)(b) 4., F.C.A., demonstrating that the Petitioner had made a good faith effort to meet the D.E.B. goal.

Exception No. 7. As is stated in the rule, the list of factors to be considered in evaluating a contractor's good faith efforts is not exclusive nor exhaustive. The quality, quantity and intensity of the contractor's efforts are also to be considered. The information demonstrating the good faith efforts 15 to be submitted with the contractor's bid proposal. (Section 14-78.03(2)(b)4., F A. C.

Through the information submitted with the bid proposal, the Good Faith Efforts Committee evaluates the contractor's good faith efforts to meat the goals specified. The Petitioner did not submit documentation which would allow the Good Faith Efforts Committee to make an evaluation that the Petitioner had made the required Good Faith Effort.

The fact that petitioner was not included on the FTBA list or that Petitioner placed a newspaper advertisement four days before the bid letting does not overcome the deficiencies in the Petitioner's effort to satisfy the requirements of Section 14-78.03(2)(b)4., nor do they rise to the level of required quality, quantity and intensity of efforts necessary to satisfy the good faith efforts requirements.

Competent, substantial evidence was received at the hearing that Petitioner was aware of certain known barriers to participation by minority and women subcontractors which included: lack of certified minority and woman subcontractors and lack of response when requested to bid. (Joint Exhibit 1, E.

J. Strickland Construction, Inc., D.B.E./W.B.E. Affirmative Action Plan). However, there was no showing that Petitioner did any more than run the newspaper advertisement.

Such newspaper advertisement does not satisfy any of the criteria for determining a Good Faith Effort has bean made.

For the foregoing reasons, it is found that the bid of E.J. Strickland Construction, Inc., on State Project No. 75030-3518 is deemed nonresponsive, for failure to demonstrate that good faith efforts were made to meet the D.B.E. goals, and 15 rejected.

Accordingly, IT IS ORDERED that the Bid Protest of E. J. Strickland Construction, Inc., is dismissed and the contract on State Project No. 75030- 3518 is awarded to the lowest responsive bidder, Cone Constructors, Inc.

DONE and ORDERED this 12th day of June, 1986, in Tallahassee Leon County, Florida.

THOMAS L. DRAWDY

Secretary

Department of Transportation

Judicial review of agency final orders may be pursued in accordance with Section 120.68, Florida Statutes and Florida Rules of App-

ellate Procedure 9.030(b)(1)(c) and 9.110. To initiate an appeal, a Notice of Appeal must

be filed with the Department's Clerk of Agency Proceedings, Haydon Burns Building, 605 Suwannee Street, MS-58 Tallahassee, Florida 32301-8064, and with the appropriate District Court of Appeal within 30 days of the filing of this Final Order with the Department's Clerk of Agency Proceedings. The Notice

of Appeal filed with the District Court

of Appeal should be accompanied by the filing fee specified in Section 35.22(3), Florida Statutes.

COPIES FURNISHED:

Roger A. Kelly, Esquire

P. Joseph Wright, Esquire Orlando, Florida 32802-3587

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

J. Lawrence Johnston, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

Docket for Case No: 86-000787BID

Orders for Case No: 86-000787BID