STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

THE CONE CORPORATION, )

)

Petitioner, )

)

1. ) CASE NO. 88-3093BID

   )

   STATE OF FLORIDA, ) DEPARTMENT OF TRANSPORTATION, )

   )

   Respondent. )

   )

   
   

   RECOMMENDED ORDER OF DISMISSAL

   
   

   Pursuant to notice, a motion hearing was held on July 7, 1988, in Tallahassee, Florida, on Respondent's Motion to Dismiss Bid Protest, before the Division of Administrative Hearings, by its designated Hearing Officer, Diane K. Kiesling.

   
   

   APPEARANCES

   
   

   For Petitioner, W. Crit Smith The Cone Attorney at Law

   Corporation: Post Office Box 1695

   Tallahassee, Florida 32302

   
   

   For Respondent, Bruce A. Campbell

   The Department Senior Litigation Attorney Transportation: Department of Transportation

   Haydon Burns Building, Mail Station 58 Tallahassee, Florida 32399-0458

   
   

   The Motion to Dismiss Bid Protest essentially sought dismissal of the Formal Protest on two grounds:

   
   

   1. That Petitioner had waived its opportunity to challenge the bid letting of December 2, 1987.

      
      

   2. That Petitioner lacks standing to protest the bid letting of June 6, 1988.

FINDINGS OF FACT

These Findings of Fact are based on the undisputed facts asserted and agreed to by the parties in the course of the motion hearing.

1. Petitioner, the Cone Corporation (Cone), was the low bidder in a bid letting for Project No. 29170-3418, on December 2, 1987.

   
   

2. The Department of Transportation (DOT) rejected all bids because they exceeded the estimate of DOT for the project.

3. Cone did not file a protest of DOT's decision to reject all bids and relet the project.

   
   

4. DOT relet Project No. 29170-3418 on June 6, 1988.

   
   

5. Cone submitted a bid which was third lowest, with Jasper Construction Company (Jasper) being the low bidder. Cone's bid was higher than the one it submitted in the first letting.

   
   

6. Jasper's bid in the second letting was higher than Cone's bid in the first letting, which had been rejected by DOT.

   
   

7. DOT posted its intent to award the project to Jasper on June 6, 1988.

   
   

8. Cone timely filed its Formal Protest on June 16, 1988.

   
   

9. Cone is not asserting that either Jasper or the second low bidder are not responsive or responsible.

   
   

10. Cone is asking either 1) that its low bid in the first letting be considered in the second letting and that it then be considered the low bidder or 2) that DOT reject all bids again and relet the bid a third time. The apparent basis for Cone's second argument is that if all bids were unacceptably high in the first letting and if Jasper's bid in the second letting is higher than Cone's bid in the first letting, then it stands to reason that Jasper's bid and all bids on the second letting are also higher than DOT's estimate and should be rejected.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Sections 120.53(5) and 120.57(1), Florida Statutes.

    
    

12. All bidders have standing to protest the rejection of bids and reletting of bids. Solar Energy Control, Inc. v. State of Florida Department of Health and Rehabilitative Services, 377 So.2d 746 (Fla. 1st DCA 1980). Protests must be filed within 72 hours after the notice of the agency decision. Failure to timely file a notice of protest constitutes a waiver of proceedings under Chapter 120. Section 120.53(5)(b), Florida Statutes (1987).

    
    

13. Here Cone did not file a protest regarding the agency's rejection of bids in the first letting. Therefore, it must be concluded that Cone has waived its right to protest that decision. To the extent that Cone's Formal Protest filed herein seeks to raise issues regarding the first bid letting and decision to reject all bids, it should be dismissed.

    
    

14. Cone also asks either that its bid from the first letting be considered in the second letting (which would make it low bidder) or that all bids in the second letting be rejected as being in excess of the maximum acceptable bid. Cone lacks standing to raise either of these issues.

    
    

15. First, Cone submitted a bid in the second letting which was higher than the bid it submitted in the first letting. To permit Cone to now resurrect its first bid and bring it into the second letting would be violative of the prohibition against giving bidders a competitive advantage over the other

    bidders in the bid letting. Cone submitted a new bid in the second letting and that is the bid with which it must proceed. Cone asserts no legal theory or authority which could allow it to resurrect its earlier bid and substitute it for the higher bid submitted in the second bid letting. It is concluded that no legal theory or authority exists which could permit such a result.

    
    

16. Second, Cone wants all bids rejected because all are apparently higher than the maximum acceptable bid level which was applied in the first bid letting. However, this has nothing to do with second bid letting. DOT is free to increase the maximum acceptable bid level which it applies to a particular reletting of a bid. Groves-Watkins Constructors v. Department of Transportation, 511 So.2d 323 (Fla. 1st DCA 1987), is not relevant here because it arose from a protest by the apparent low bidder of DOT's decision to reject all bids because they all exceeded the DOT estimate. In such a context, DOT's estimate and how it is calculated is an issue that can be raised by the apparent low bidder protesting rejection of all bids.

    
    

17. In the present case, the protesting bidder must have standing before it can address the issue of how DOT arrived at its estimate. This issue cannot be used to establish standing to bring the action in the first place. Here, Cone is the third low bidder and as such is unable to show and has not shown that its substantial interests are adversely affected by the decision to award the bid to the lowest responsive bidder. Preston Carroll v. Florida Keys Aqueduct Authority, 400 So.2d 524 (Fla. 3rd DCA 1981).

    
    

18. Cone's substantial interests cannot and have not been affected by DOT's estimate applied to the second bid letting since Cone knew that its low bid in the first bid letting was rejected as being too high and yet it bid even more in the second bid letting. Obviously Cone knew or understood that DOT's estimate could change in the second bid letting or else it would have bid less in the second bid letting. Cone clearly lacks standing to assert that all bids should be rejected in the second bid letting because DOT's estimate changed between the first and second bid letting. Accordingly, the Formal Protest should be dismissed.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a Final Order

dismissing the Formal Protest filed by the Cone Corporation.

DONE and ORDERED this 8th day of July, 1988, in Tallahassee, Florida.

DIANE K. KIESLING

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 8th day of July, 1987.

COPIES FURNISHED:

Bruce A. Campbell

Senior Litigation Attorney Department of Transportation Haydon Burns Building, M.S. 58 Tallahassee, Florida 32399-0458

W. Crit Smith, Attorney at Law Post Office Box 1695 Tallahassee, Florida 32302

Kaye N. Henderson, Secretary Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399-0450

Docket for Case No: 88-003093BID

Orders for Case No: 88-003093BID