STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
CSA MARINE SERVICES, INC., )
)
Petitioner, )
)
vs. ) CASE NO. 87-1161BID
) DEPARTMENT OF TRANSPORTATION, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on March 31, 1987 in Tallahassee, Florida.
APPEARANCES
FOR PETITIONER: Scott H. Schley, Esquire
330 Market Street East, Suite 200 Philadelphia, Pennsylvania 19106-2780
FOR RESPONDENT: Larry D. Scott, Esquire
Department of Transportation
Haydon Burns Building, Mail Station 58 Tallahassee, Florida 32399-0450
BACKGROUND
On March 3, 1987, respondent, Department of Transportation (DOT), issued proposed agency action advising all bidders on State Job Number 08150-3412 that Seig & Ambachtsheer, Inc. had submitted the lowest and most responsive bid, and would be awarded the contract on the project. Thereafter, petitioner, CSA Marine Services, Inc. (CSAMS), timely filed its notice of protest. A formal protest was later filed on March 13, 1987. In its protest petitioner generally alleged that DOT had improperly adjusted its bid price from $123,347.59 to
$265,016.59 thereby making its bid price substantially higher than that of the apparent low bidder. Petitioner contends this action was arbitrary, capricious and erroneous, and asks that the bid tabulations be reissued designating CSAMS as the lowest responsive bidder.
The matter was referred to the Divisions of Administrative Hearings by DOT on March 20, 1987, with a request that a hearing officer be assigned to conduct a hearing. By notice of bearing dated March 23, 1987, a final hearing was scheduled for March 31, 1987 in Tallahassee, Florida.
At final hearing the parties stipulated to various factual matters received in evidence as joint exhibit 1. Petitioner also offered petitioner's exhibits
which were received in evidence. Respondent presented the testimony of Juanita Moore, deputy bureau chief of the Bureau of Contract Administration.
Finally, the undersigned has taken official notice of a Final Order entered on December 8, 1983 in DOAH Case No. 83-1851.
The transcript of hearing was filed on April 10, 1987. Proposed findings of fact and conclusions of law were filed by the parties on April 20, 1987. A ruling on each proposed finding of fact has been made in the Appendix attached to this Recommended Order.
The issue herein is whether petitioner submitted the lowest responsive bid on State Job No. 08150-3412.
Based upon all of the evidence, the following findings of fact are determined:
FINDINGS OF FACT
On December 24, 1986, respondent, Department of Transportation (DOT), gave notice to qualified and interested contracting firms that it was accepting bids from firms interested in providing construction and maintenance services on State Job No. 08150-3412. Such bids were due on or before January 21, 1987.
The job description read as follows:
At State Bridge Nos. 080025 and 000026 over the Withlacoochee River North of Tampa.
Work consists of Furnish and Install Integral Pile Jackets (port. cement grout filled); Remove and Replace Sections of Bridge Deck; Floating Turbidity Barrier; and Incidental Items. Length 0.066 Mile. (B.I. 1144013)
Stated in plainer language, the project called for repairs to two bridges on I-75 which span the Withlacoochee River southwest of Ocala in Hernando County. The bidders were also provided with a copy of the specifications and bid form dated November 4, 1986 regarding the contract.
In response to this offer, petitioner, CSA Marine Services, Inc. (CSAMS), a contractor with offices at 759 Parkway Street, Jupiter, Florida, filed a bid proposal by the established deadline. Its bid totalled $123,347.59. Also filing a bid proposal was Seig and Ambachtsheer, Inc. (SAI), a contractor in Orange City, Florida. Its bid price was $137,209.50.
The bid form itself was prepared by DOT and merely required the contractor to fill in the blanks where appropriate. The first two columns were labeled "item number" and "approximate quantities" and were already completed by DOT. For those items having a quantity of only one, the words "lump sum were written in the second column. Where quantities exceeded one, they were expressed in such terms as linear feet, cubic yards and pounds together with the approximate numerical quantities. The third column was labeled "item description and unit or lump price (written in words)." The fourth column read "unit price (in figures)" and required the bidder to indicate the unit price of each line item in figures. The fifth or final column was labeled "amounts" and required the bidder to reflect the lump sum price of each line item in figures. Columns three through five were filled in by CSAMS where necessary. The total price of the bid was to be listed on a bid blank which was attached to the bid form.
On its face, the third column on the form offered petitioner the option of either using a unit or lump sum price. In addition, section 2-5.1 of the Standard Specifications for Road and Bridge Construction, 1986 Edition, which governs the awarding of contracts and has been incorporated as a part of the bid documents, provides as follows:
Proposals shall be submitted on the form described in 2-2. Unit or lump sum prices for all bid items shall be shown in words and figures, and all extensions shall be carried out.
Notwithstanding the form and instructions, according to a DOT representative, a lump sum price may be used only when the quantity in column two is one item. If more than one item is reflected in column two, then DOT expects a contractor to use the unit price. However, there is no written rule, instruction or provision in the specifications that sets forth this requirement.
CSAMS properly opted to use lump sum price under column three on at least two line items even though the quantities exceeded one. Of particular interest was line item 8400-3-4 which, according to column two, required 20.800 cubic yards of concrete for a "superstructure." Relying upon the optional language on the form, petitioner wrote the words seven thousand, one hundred, fifty five dollars and 00/100 cents" in column three (which was a lump sum price), and a unit price of $344.00 in column four. It then used the figure of
$7,155 in the final column of that item, which is the approximate sum of $344 times the quantity (20.800).
Because of the volume of bid lettings each month, DOT uses a computer to total the numbers in each line item for each bid. If the amount in column five does not agree with the figures in columns three and four, the computer flags the item, and a manual review of the line item is made. While reviewing line item 8400-3-4 of petitioner's bid form, the computer found the numbers did not agree. More specifically, when 20.800 in column two was multiplied times
$344.00 in column four, it equalled $7,155.20 and not $7,155.00 as reflected in column five of petitioner's bid form. This twenty-cent disagreement arose because petitioner had rounded off the unit price from $343.99038 to $344.00 in column four. The disagreement prompted a manual review of petitioner's bid form and a recalculation of the line item.
On January 30, 1987 DOT bureau chief J. Ted Barefield prepared a letter to CSAMS styled "Notice of Switch in Apparent Low Bidder" indicating in part:
Due to mathematical error(s) on the bid of CSA Marine Services, Inc. and Continental Shelf Associates, Inc., the apparent low bidder, whose bid amount was $123,347.59 is now $265,016.59. Therefore, the apparent low bidder is Seig & Ambachtsheer, Inc.
The change in amount was the result of DOT increasing the unit price in column four from $344 to $7,155 (to agree with column three) and multiplying the quantity (20.800) times the sum specified in words in column three ($7,155) to arrive at a total in column five of $148,824. This caused an increase of
$141,669 over the original bid price.
In making the above change, DOT relied on Section 3-1 of the 1986 Edition of the Standard Specifications for Road and Bridge Construction. Section 3-1 provides in relevant part as follows:
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. (Emphasis added)
Here, because of the twenty-cent discrepancy in the entries for line item 8400-3-4, DOT used the "unit price as shown in words" in column three to recalculate the item since the extension ($7,155.00) and the unit price shown in figures ($344.00)" did not agree. In doing so, DOT did not first evaluate the price written in words to see if it was a lump sum or unit price.
After receiving the above letter, CSAMS and DOT representatives met in early February 1987 to discuss the CSAMS proposal. It was represented to CSAMS that it should have used a unit price in words in column three rather than a lump sum price. Petitioner was also provided with a copy of a letter previously sent to it on September 6, 1985 by DOT which noted the following irregularity on a bid: "Unit prices as written in words and figures do not agree (Item 8457- 70)." However, the letter did not contain explicit advice as to DOT's unwritten policy.
On February 5, 1987 Barefield wrote a second letter to CSAMS indicating that there were several discrepancies in its bid proposal. These included: (a) the name on the cover sheet (CSAMS and Continental Shelf Associates, Inc.) did not agree with the name (CSAMS) in other parts of the bid,
(b) unit prices as written in words and figures did not agree, (c) an incomplete affidavit was filed, and (d) an incorrect MBE Certification and incomplete Utilization Sheets were submitted. The latter two errors were related to the discrepancy in the names. However, the letter stated that "no further action is requested by you at this time," and that the letter was to serve as a reminder that in the future the irregularities could cause petitioner's bid to be rejected. Petitioner's bid was accepted as being appropriate but with the substantially higher bid price of $265,016.59.
The error made by CSAMS is a common one. Indeed, it was stated the same mistake is made by contractors on "several bids during each letting." Even so, DOT has not considered providing some special instruction or rule to clarify this matter.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the subject matter and the parties there to pursuant to Subsections 120.53(5) and 120.57(1), Florida Statutes (1985).
Petitioner raises several arguments in support of its position.
First, it contends the specifications (Section 2-5.1) and the form itself authorized the use of unit or lump sum price for all bid items, and that its use of a lump sum price was therefore proper. Secondly, it contends DOT's letter of September 6, 1985 did not constitute notice to CSAMS that unit prices in words were to be listed in column three of the bid form. Third, it argues that the
forms and specifications prepared by DOT were conflicting and ambiguous, and should accordingly be strictly construed against DOT. Finally, CSAMS urges that section 3-1 of the specifications is inapplicable since CSA'S did not provide a unit price in words, but instead used a lump sum price.
Before addressing the arguments of petitioner, several broad principles regarding the bidding process should be noted. First, the challenging party carries the burden of demonstrating that the agency's action was arbitrary and capricious, or was otherwise improper. Cf. Capeletti Brothers, Inc. v. State, Department of General Services, 432 So.2d 1359, 1363-64 (Fla. 1st DCA 1983) (no error in requiring challenging party to bear burden of proving agency action incorrect). To do this, the challenger must show that the agency was not "proceeding rationally within the bounds of discretion," Couch Construction Co., Inc. v. Department of Transportation, 361 So.2d 172, 175 (Fla. 1st DCA 1978), and that the agency's decision was not based on facts which reasonably support its decision. Mayes Printing Company v. Flowers, 154 So.2d 859, 864 (Fla. 1st DCA 1963). At the same time, it is well-established that the agency is accorded "wide discretion in soliciting and accepting bids for public improvement, and its decision, when based on an honest exercise of this discretion, will not be overturned by a court even if it may appear erroneous and even if reasonable persons may disagree." Liberty County v. Baxter's Asphalt and Concrete, Inc., 421 So.2d 505, 507 (Fla. 1982). Finally, bidding specifications must be "clear and precise," and a bidder is not required to have knowledge of "unwritten rules" that the agency may use in the bidding process. Auroro Pump, Division of General Signal Corporation v. Goulds Pumps, 424 So.2d 70, 75 (Fla. 1st DCA 1982). If such "unwritten rules" exist, thereby creating an ambiguity or conflict in the specifications or instructions, the ambiguity should be resolved against the agency. Auroro Pump; Wester v. Belote, 139 So. 721, 724 (Fla. 1931).
Applying the foregoing principles to the facts herein, and addressing petitioner's arguments in the order raised, it is first noted that petitioner had the right to utilize either a unit price or a lump sum price in column three of the bid form. This was authorized by the form itself as well as section 2-
5.1 of the specifications. Although the agency had an unwritten policy of requiring the use of a unit price where the quantity exceeded one, the specifications and instructions did not disclose this fact. This being so, CSAMS was entitled to rely upon a reasonable interpretation of the instructions, since it was not privy to the "unwritten rule." Auroro Pump, supra. Finally, DOT's argument that its letter of September 6, 1985 alerted CSAMS as to DOT's "unwritten rule" is unavailing since that letter merely noted that in one item on a bid the "unit prices as written in words and figures (did) not agree" and made no reference to the unwritten DOT policy.
The next issue is whether DOT properly recalculated CSAMS' bid under the provisions of section 3-1 once it detected a twenty-cents error in line item 8400-3-4. DOT posits that any time an error appears within a line item, the specifications call for application of the instructions in section 3-1. While this may be true, the agency is still obliged to first determine if the bidder has used a lump sum price or unit price in column three, since a bidder has the option to use either. Here DOT made no such evaluation. By assuming that the price in column three was a unit price without further inquiry, DOT acted in an arbitrary manner. Further, the calculation called for in section 3-1 is applicable only when the bidder uses a "unit price as shown in words." By applying this section even though CSAMS used a lump sum price, DOT acted in an arbitrary and capricious fashion.
Respondent has also relied upon final agency action in International Foundation Corporation v. Department of Transportation, DOAH Case No. 83-1851, Final Order dated December 8, 1983, as authority for its action here. However, such reliance is misplaced. In that case, the bidder had made a clerical error when filling out column three by inserting a unit price of $304.03 instead of the correct price of .30403 cents per unit. Because the figures did not agree, DOT properly relied on section 3-1 to recalculate the item. This was appropriate since the bidder had used a unit price (and not a lump sum price). Further, DOT was obliged in that case to follow well-established judicial precedent that an agency may not correct material mistakes after the bids have been opened. See, for example, Harry Pepper & Associates, Inc. v. The City of Cape Coral, 352 So.2d 1190, 1192 (Fla. 1st DCA 1977). In the case at bar, there was no mistake on the part of CSAMS in filling out column three, and it used a lump sum price instead of a unit price. Therefore the cited case is distinguishable.
Because the agency was arbitrary and capricious in recalculating petitioner's bid proposal, the bid should be awarded to petitioner, whose bid was almost $14,000 lower than that of SAI.
Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that petitioner be awarded the contract on State Job No. 08150-
3412.
DONE AND ORDERED this 22nd day of April, 1987, in Tallahassee, Leon County, Florida.
DONALD R. ALEXANDER
Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 22nd day of April, 1987.
ENDNOTE
1/ On the cover sheet of its bid form, petitioner used the names "CSA Marine Services, Inc. and Continental Shelf Associates, Inc." There was no explanation as to the relationship, if any, of the two entities, or whether they were in fact separate entities. Resolution of this matter is unnecessary, however, to resolve the principal issue in this dispute.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-1161BID
Petitioner:
Covered in finding of fact 1.
Covered in findings of fact 2 and 10.
Covered in finding of fact 3.
Covered in finding of fact 5.
Covered in finding of fact 5.
Covered in finding of fact 7.
Covered in finding of fact 7.
Covered in finding of fact 8.
Covered in finding of fact 6.
Covered in finding of fact 6.
Covered in finding of fact 8.
Covered in finding of fact 7.
Covered in finding of fact 6.
Covered in finding of fact 4.
Covered in finding of fact 4.
Covered in finding of fact 12.
Covered in finding of fact 12.
Covered in finding of fact 5.
Covered in finding of fact 6.
Rejected as being unnecessary.
Rejected as being unnecessary.
Covered in finding of fact 2.
Rejected as being argument rather than a finding.
Rejected as being unnecessary.
Respondent:
Covered in finding of fact 2.
Covered in finding of fact 8.
Partially covered in finding of fact 3. The remainder is not supported by the record [TR 8 and 9) as cited to by respondent. 4. Rejected as being unnecessary.
Covered in finding of fact 5.
Partially covered in findings of fact 6 and 7. Those findings that CSAMS had to use unit price rather than lump sum price are rejected as being contrary to the instructions on the bid form and the specifications.
Covered in finding of fact 7.
Covered in finding of fact 7.
Covered in finding of fact 10.
Covered in finding of fact 9.
COPIES FURNISHED:
Scott H. Schley, Esquire
330 market Street East, Suite 200 Philadelphia, PA 19106-2780
Larry D. Scott, Esquire Department of Transportation Haydon Burns Building, MS-58 Tallahassee, Florida 32399-0450
Kaye N. Henderson, P.E. Secretary
Department of Transportation Haydon Burns Building
605 Suwannee Street
Tallahassee, Florida 32399-0450
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AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
CSA MARINE SERVICES, INC.
Petitioner,
vs CASE NO. 87-1161BID
STATE OF FLORIDA,
DEPARTMENT OF TRANSPORTATION,
Respondent.
/
FINAL ORDER
The record in this proceeding has been reviewed along with the Recommended Order of the Hearing Officer. The exceptions to the Recommended Order filed by Respondent have been considered.
The introductory material and the findings of fact and conclusions of law not specifically rejected herein are adopted and made a part of this Final Order.
Conclusion of law four states that Petitioner had a random option to utilize either a unit price or a lump sum price in column three of the bid form and cites as authority the form itself and Section 2-5.1 of the Specifications. The term "lump sum" does not refer to "price". That term refers to an item in a bid that cannot be individually quantified. Thus, payment for a lump sum item is accomplished by paying the amount as noted in the bid documents regardless of the amount of materials used which make up the lump sum. If there are quantities involved then those units are paid for depending upon how many units are actually used during construction. The word "price" is added to the words "lump sum" in column three of the bid form and in Section 2-5.1 of the general specifications to indicate that a lump sum price is to be written when quantities are not important in paying for a bid item (i.e. when the quantity is a lump sum). Hence, a review of the bid form, Standard Specification Sections
3.1 and 2-5.1 does not support the conclusion that column three provided a random option to bidders. Moreover, Section 2-5.1 provides that "Unit or lump sum prices for all bid items shall be shown in both words and figures, and all
extensions shall be carried out." (emphasis added) That is, if column two specifies a lump sum quantity, then the bidder was to write the lump sum price in words in column three. If column two specified quantities in units, then the bidder was to write a unit price in words in column three. On the disputed line item, Petitioner showed a lump sum price in words and a different unit price in figures. Even using the Hearing Officer's interpretation of the above cited specification to allow an option to use the lump sum price or a unit bid price in column three Petitioner did not show a consistent lump sum price in words and then a lump sum price in figures, nor did they show a unit price in words and then a unit price in figures, as would be required under the Hearing Officer's interpretation. The Hearing Officer's seizure on the word "or" as the basis of his ruling omitted) consideration of the rest of the sentence in Specification
2-5.1, "to carry out the extension." No extension could be carried out using Petitioner's lump sum or bid item price which exactly reconciled with Petitioner's extension amount of $7,155.00. When the 20.800 cu. yds. specified in column two is multiplied by the price Petitioner specified in words, a total of $148,824.00 is yielded. When the 20.800 cu. yds. required is multiplied by the unit bid price which Petitioner specified in figures, a total of $7,155.20 is yielded. Neither figure reconciles with Petitioner's extension amount of
$7,155.00. Further explanation of what was required of bidders is contained in Specification 3-1 in the provision explaining that upon opening of the bids, "the correct summation of the products of the approximate quantities shown in the proposal..."will be considered. The approximate quantities are designated in column two of each line item, and the product is designated in column five of the line item.
Contrary to the Hearing Officer's assertion in Conclusion of Law Four that the specifications and instructions did not disclose the proper way to fill out the bid form, a reading of Specifications 3.1, 2-5.1 and the bid form indicate that line items must be filled out 50 that an extension of the figures provided by the bidder can be made in column five. Further, Specification 3.1 indicates what to do in the event of discrepancies in the three entries for the price for any item. These indicate a need for reconciliation of the three figures bid on any line item. A reasonable and logical reading of the bid form arrangement itself, viewed in pari materia with the two cited specifications does indicate the correct way to fill out the bid. When the advertised purchase item is by a lump sum quantity, the bidder is to bid a lump sum price, stating said price in words and then in figures, and then calculating the extension of that amount.
However if the advertised purchase item is by a quantity of units, the bidder is to bid a unit price, give a single unit price in words and then in figures, and then calculate the extension. This is to facilitate the actual pay accrued during construction since the unit quantities are estimated quantities and the final price paid is based on the actual units of work performed.
The Hearing Officer's assertion in Conclusion of Law Four that the Petitioner could rely on their reasonable interpretation of the to provide either a lump sum price or a unit price, irrespective of what the advertised bid form called for in column one, because of the alleged "unwritten rule, is rejected. The evidence does not support a conclusion that there was an "unwritten rule" as to how to fill out the bid, nor that the alleged rule was inconsistent with the governing specifications. The Hearing Officer's assertion that Petitioner was "not privy" to DOT's alleged unwritten rule is not supported by the record. CSA Marine Services was advised of the specifications by their incorporation In the bid as displayed on A the front of the bid document, (T-10, line 8,) and the prior letter to CSA Marine Services, advising them of the way to correctly fill out the bid based on their past error in filling out another bid (Stipulation regarding DOT letter dated September 6, 1985)
The Hearing Officer in Conclusion of Law Five essentially drafts a new specification by requiring the Department to provide for an option and then determine whether a bidder has opted to use a lump sum price or a unit price in column three. The Hearing Officer found that the Department failed to ascertain whether CSA Marine Services opted to use a lump sum price before applying specification 3.1. Applying specification 3.1 did result in the de facto consideration of CSA Marine Services' lump sum price in order to determine the extension amount to be $148,824 (20.800 x $7,155 = $148,824.00).
In Conclusion of Law Five the Hearing Officer acknowledges Petitioner's error in the line item at issue ("...once it (DOT) detected a twenty-cents error in line item...), yet in the same conclusion he dispenses with the specification and unilaterally decides how such discrepancies or errors should be handled. As a matter of law, the Department was constrained to follow its specification in dealing with the error in the line item bid.
In International Foundation vs. Dept. of Transportation, D.O.A.H. Case NO. 83-1852, (official Notice taken, T-29), a bidder provided an unintended figure in words in column three, a different unintended figure in figures was provided in column four, but the amount the bidder intended as the total extension amount in column five was accurately provided by the bidder. The Department attempted to disregard the bidder's errors in columns three and four and) utilize the column five amount of the line item. That Hearing Officer rejected the Department's action. The Hearing Officer found the error to be clerical in nature, (findings of fact 4) but found that the Department had to apply Sec. 3.1 of the specifications because of the discrepancy in the three entries for the price of the line item. He stated, However, Respondent's Section 3-1 of the specifications clearly provides that the unit price will govern, and that if there is any discrepancy in the three entries for the price of any item the unit price in words shall govern, unless the extension and the unit price shown in figures are in agreement." (findings of fact four Recommended Order, D.O.A.H. Case No. 83-1851, attached hereto and incorporated herein. His reasoning included, "To permit the Spearman bid to be corrected would be contrary to specifications, and would place Petitioner (another bidder at a competitive disadvantage." The Final Order adopted the Recommended Order. The Department applied the findings of this prior Recommended Order in the instant situation thus negating a finding of arbitrary and capricious action. The Department is constrained to follow its specifications to avoid allowing a situation wherein one bidder is given the opportunity for a competitive advantage which other bidders do not enjoy. See Harry Pepper and Associates, Inc. v. City of Cape Coral, 352 So.2d 1190 (Fla. 2d DCA 1978)
Another reason for concern with discrepancies between unit or lump sum prices provided in words and in figures, is the need to know with certainty what unit price was bid. During the course of a contract, more of a given item may be needed and the Department would not want to be bound by an erroneously high unit price. If it is found during the course of a project that a quantity has been underestimated or overestimated, the unit price is used to determine the appropriate adjustment. The purpose of having the unit price written in both words and figures on the bid proposal and double checked by the Department before the contact is awarded is to insure accuracy in the unit price at the outset of a project, to avoid later potential and costly debate, negotiation and litigation. In the instant case, the hearing officer made no finding as to which price is Petitioner's bid price for the line item. This illustrates the need to follow the specifications for guidance. Accordingly, the Hearing Officer's recommendation is rejected.
The following findings of fact are rejected as not supported by competent substantial evidence: Findings of Fact Three states that the fifth column of each line item (labeled "amounts") requires the bidder to reflect the lump sum price of each line item in figures. The fifth column required statement of the total price for each line item, not the "lump sum. Lump sum prices were to be stated in column three only if the bid item was capable of pricing in a lump sum quantity. The only time the figure required by the "Amounts" column will be the same as the "Lump Sum" price will be for those bid items that are priced by lump sum (T-p. 16, 17). On the bid form the term "Lump Sum" is utilized as a quantity designation, as are such terms as linear feet" and "cubic yards."
In Finding of Fact Four, the Hearing Officer found that column three of the bid form facially offered an option of either using a unit or lump sum price. A consideration of all the bid form columns, the extension requirement, and the specifications, however, negates any option. There was no testimony or stipulated facts which supported this option interpretation. Accordingly, the Hearing Officer's finding of fact five that CSA Marine Services "properly" exercised an option to use a lump sum price in column three, when the line item was not a lump sum item, is rejected as not supported by competent substantial evidence. Finding of Fact Eight is rejected to the extent that the Hearing Officer establishes a new requirement, that the DOT check column three to determine whether the bidder "opted" to provide unit or lump sum price written in words.
Finding of Fact Nine is rejected to the extent the Hearing Officer finds that DOT had an unwritten policy, as the record does not substantiate this.
The last sentence of Finding of Fact Eleven that DOT has not considered providing special instruction to clarify how to avoid) making the error CSA Marine Services made, is rejected as being contrary to the evidence. Testimony indicated that special instructions are routinely provided to bidders who make any errors in their bid, including CSA Marine Services (T-11, 1. 14 et seq.).
See also, the findings of the Hearing Officer at findings of fact 7, 9 and 10, which are inconsistent with this rejected finding.
The Hearing Officer's tacit approval of CSA Marine Services using an "approximate sum "for the extension price (amount-column five) is disapproved. Section 2-5.1 requires that all extensions be carried out; no provision is made for rounding off (finding of fact five).
IT IS ORDERED that the protest of CSA Marine Services, Inc. IS DISMISSED and State Project No. 08150-3412 awarded to SEIG AND AMBACHSHEER, INC.
DONE and ENTERED this 20th day of July, 1987, in Tallahassee, Florida.
KAYE N. HENDERSON, P.E. SECRETARY
The following information is required by law to be included in all Final Orders:
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, MS 58, 605 Suwannee Street, Tallahassee, Florida 32399-0458 and with the appropriate District Court of Appeals within thirty (30) days of the filing of this Final Order
with the Department's Clerk of Agency Pro- ceedings. The Notice of Appeal filed with the District Court of Appeal should be accom- panied by the filing fee specified in Section 35.22(3), Florida Statutes.
COPIES FURNISHED:
Scott H. Schley, Esquire
300 Market Street East, Suite 200 Philadelphia, Pennsylvania 19106-2780
Larry D. Scott, Esquire Department of Transportation Haydon Burns Building, MS 58 Tallahassee, Florida 32399-0458
| Issue Date | Proceedings |
|---|---|
| Apr. 22, 1987 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Jul. 20, 1987 | Agency Final Order | |
| Apr. 22, 1987 | Recommended Order | Agency found to be arbitrary in rejecting a bid where bidder not aware of agency's unwritten policy as to its specifications. |
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GROVES-WATKINS CONSTRUCTORS vs. DEPARTMENT OF TRANSPORTATION, 87-001161BID (1987)
