STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WESTERN WASTE INDUSTRIES, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 88-3065B1D

) DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Tallahassee, Florida, before Robert T. Benton, II, Hearing Officer of the Division of Administrative Hearings, on July 7, 1988. Respondent's proposed order, filed July 14, 1988, which does not contain separately numbered findings of fact, has been considered in preparation of the recommended order.

Petitioner did not participate in the drafting of the "prehearing stipulation" filed by respondent, did not file a unilateral prehearing statement, did not appear at the final hearing, and did not file a proposed recommended order. Respondent is represented by counsel:

George S. Lovett, Esquire District General Counsel Department of Transportation 719 South Woodland Boulevard Deland, Florida 32720

These proceedings arise on a protest to specifications the Department of Transportation (DOT) laid down in an invitation to bid on project No. 9024-88, calling for garbage collection service at two locations in Volusia County.

ISSUE

Whether DOT has improperly excluded Western Waste Industries, Inc. from bidding by combining two Volusia County sites in a single invitation to bid?

FINDINGS OF FACT

1. A three-man maintenance crew works out of DOT's Daytona Beach construction office, which is 16 miles distant from DOT's principal Volusia County facility, the Deland maintenance yard. In the summer, when both mowing operations and littering are at their peak, 72 DOT field people and 14 convicts set out from the Deland yard daily to sweep the roadways, police, grade and seed the shoulders, cut the grass and do other bridge, pipe and concrete maintenance.

   
   

2. At one time, as the work day ended, crews dropped litter and mown grass at the county dump on their way back to the sites at which they assembled mornings in Deland and Daytona Beach. The Daytona Beach crew still does. But

   somebody calculated that DOT could save 100 man hours a month by arranging for "dumpsters" at both its Volusia County yards. That way all workers can return to their work stations directly, and no side trip is required in order to dispose of litter and cut grass.

   
   

3. On April 1, 1988, petitioner Western Waste Industries, Inc. (WWII) installed two dumpsters, each with a capacity of eight cubic yards, at DOT's Deland yard. Under a month to month agreement, WWII empties both containers twice weekly in exchange for $273 monthly. DOT is satisfied with its decision to use dumpsters, but is obliged to invite bids, because DOT cannot procure the services it needs for less than $3000 a year.

   
   

4. Among the specifications set out in DOT's invitation to bid is the form of the contract the successful bidder is to sign, which includes the following:

   
   

   1.00 The Department does hereby retain the Contractor to furnish certain services in connection with Central Point Refuse Pickup and Disposal Originating at the Department's Maintenance Office Located at 1655 North Kepler Road, Deland, Florida, with an Option to Include Similar Services for the Department's Construction Office Located at 915 South Clyde Morris Boulevard, Daytona Beach, Florida. DOT's Exhibit No. 1 (emphasis in original)

   
   

   In Exhibit A to the form contract, entitled "SCOPE OF SERVICES," the specifications call for "trash containment and removal of litter ... from specific offices located in the Department's District Five." Id. Exhibit A specifies both the Daytona Beach and the Deland offices by name and address.

   
   

5. Attachment B indicates that the successful bidder is to remove 40 cubic yards of refuse weekly from DOT's maintenance yard in Deland and, at DOT's option, additional refuse from the Deland yard, from the Daytona Beach office, or from both. If DOT exercised both options, the contractor would haul ten percent of DOT's refuse from the Daytona Beach office, on an annual basis.

   
   

6. In its letter of protest, dated June 14, 1988, WWII complains that it "operate[s] on the West Side [of Volusia County] only." But the two companies who submitted bids in response to DOT's invitation to bid are willing to collect refuse at both sites. No exclusive franchise or other legal impediment precluded WWII from bidding on collection at both sites By soliciting bids for service at both sites, DOT avoids the administrative costs of inviting and evaluating two sets of bids.

   
   

   CONCLUSIONS OF LAW

   
   

7. In accordance with Section 120.53(5), Florida Statutes (1987), DOT stopped the bidding process, when it received WWII's letter stating, "We feel the combining of these two locations unfairly excludes us ... " Treating this as a factual claim with which DOT took issue, the agency transferred the matter to the Division of Administrative Hearings for proceedings in accordance with Section 120.57(1), Florida Statutes (1987).

8. When an administrative agency draws up bid specifications, it takes action which ordinarily becomes final before the time for submission and opening of bids arrives. By adequately disseminating specifications well in advance of bid deadlines, an agency can assure that the specifications become final before bids are opened. See Capeletti Brothers, Inc. v. Department of Transportation,

   499 So.2d 855 (Fla. 1st DCA 1986)(reh. den. 1987). Without compromising the finality that must ultimately characterize bid specifications so that bidders can compete on the same terms, the questions whether bid specifications are technically adequate, promote fair competition and otherwise reflect sound policy may properly be raised in timely instituted Section 120.57 proceedings, unless unchallenged agency rules foreclose inquiry. Capeletti Brothers, Inc. v. Department of Transportation, 432 So.2d 1359 (Fla. 1st DCA 1983); Couch Construction Co. v. Department of Transportation, 361 So.2d 172 (Fla. 1st DCA 1978); McDonald v. Department of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977). Here, if necessary, unopened bids could be returned and revised specifications could be advertised, without the bidders' divulging information that might put them at a competitive disadvantage.

   
   

9. When specifications are challenged, even if the agency has finally the burden of defending its policy choices, see McDonald v. Department of Banking and Finance, 346 So.2d 569, 584 (Fla. 1st DCA 1977); Couch Construction Co. v. Department of Transportation, 361 So.2d 172, 175 (Fla. 1st DCA 1978), the party challenging the specifications presumably has at least a preliminary burden to plead and prove facts which logically call the wisdom or legality of the specifications into question. See Capeletti Brothers, Inc. v. Department of Transportation 432 So.2d 1359, 1363-4 (Fla. 1st DCA 1983). WWII has neither pleaded nor proven any such facts in the present case.

   
   

10. But the outcome of the present case does not depend on which party has the burden of proof. Even if the entire burden were DOT's to shoulder, it has done so here by showing the proximity of the sites, the existence of two bidders who, unlike WWII, have not restricted their operations so as to cut themselves out of consideration, and the economies and efficiencies that DOT will realize from a consolidated bidding procedure.

It is, accordingly, RECOMMENDED:

That DOT go forward with the bidding process, without altering the challenged specifications.

DONE and ENTERED this 15th day of August, 1988, in Tallahassee, Florida.

ROBERT T. BENTON, II

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 15th day of August, 1988.

COPIES FURNISHED:

George Lovette, Esquire Department of Transportation 719 South Boulevard

Post Office Box 47

Deland, Florida 32721-0047

Western Waste Industries, Inc. of Florida

5407 Lake Howell Road Winter Park, Florida 32782

Tomoka Waste 1325 Hull Trail

Ormond Beach, Florida 32074

Industrial baste Service, Inc. 925 South Clyde Norris Boulevard Daytona Beach, Florida 32014

Kaye N. Henderson, Secretary Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399-0450

Docket for Case No: 88-003065BID

Orders for Case No: 88-003065BID