STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
STATE PAVING CORPORATION, )
)
Petitioner, )
and )
)
THE CONE CORPORATION, )
)
Intervenor, ) CASE NO. 89-6871BID
)
vs. )
)
FLORIDA DEPARTMENT OF )
TRANSPORTATION, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to written Notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Daniel Manry, held a formal hearing in the above-styled case on May 10, 1990, in Tallahassee, Florida.
APPEARANCES
For Petitioner: John H. Beck, Esquire
Lindsey, Williams & Beck, P.A., 1026 East Park Avenue Tallahassee, Florida 32301
For Respondent: Stephen Tabano, Esquire
Turnpike Counsel, Florida's Turnpike Department of Transportation
605 Suwannee Street, Mail Station 98
Tallahassee, Florida 32399-0498
For Intervenor: W. Crit Smith, Esquire
Smith & Thompson, P.A.
1530 Metropolitan Boulevard
Tallahassee, Florida 32308 STATEMENT OF THE ISSUE
The issue for determination at the formal hearing was whether Respondent should be required to provide funds to Petitioner and Intervenor for their respective technical and price proposals in accordance with former Florida Administrative Code Rule 14-91.006(5)(hereinafter "Rule 14-91.006(5)").
PRELIMINARY STATEMENT
Petitioner filed its Request for Administrative Hearing with Respondent on September 25, 1989. The request challenged Respondent's rejection of all responses to a request for proposals. Petitioner also asked for compensation from Respondent for technical and price proposals prepared and submitted by Petitioner.
The matter was referred to the Division of Administrative Hearings for assignment of a hearing officer by letter dated December 13, 1989, and assigned to the undersigned on December 15, 1989. The parties believed the matter would be settled amicably and requested a delay in the formal hearing. The matter was not settled, and a Notice of Hearing was issued on December 21, 1989, scheduling a formal for December 28, 1989, in Tallahassee, Florida.
After two agreed motions for continuance, 1/ the formal hearing was scheduled for May 10, 1990, pursuant to an Order Granting Continuance and Rescheduling Formal Hearing entered on April 9, 1990. Intervenor filed its Motion to Intervene on April 18, 1990. The Motion to Intervene was granted by order entered on the record during the formal hearing.
Pre-Hearing Stipulations were jointly and timely filed by Petitioner and Respondent on May 9, 1990, pursuant to the Prehearing Order entered on January 3, 1990. An Amendment to Request for Administrative Hearing was filed by Petitioner on May 2, 1990. The parties filed a Joint Stipulation of Facts on May 9, 1990.
At the formal hearing, Petitioner presented the testimony of three witnesses. Five joint exhibits were offered by the parties and admitted in evidence. Respondent presented the testimony of two witnesses and offered two exhibits for admission in evidence which were admitted over objection.
Respondent timely filed one late filed exhibit which was admitted in evidence over objection.
Respondent filed a Motion for Summary Order on May 8, 1990, asserting lack of jurisdiction. The motion asserted that there were neither disputed issues of material fact in this proceeding nor authority to order Respondent to pay remuneration to Petitioner and Intervenor for their respective technical and price proposals. Respondent's motion was denied on the former ground. Ruling was reserved on the latter ground. Respondent's motion is hereby denied on the second ground for reasons discussed in this Recommended Order.
A transcript of the formal hearing was filed with the undersigned on May 24, 1990. The parties expressly waived the statutory requirement for a recommended order within 30 days of the date of the formal hearing. Proposed findings of fact and conclusions of law were timely filed by the parties on June 13, 1990. The parties' proposed findings of fact are addressed in the Appendix to this Recommended Order.
FINDINGS OF FACT
The RFP
Respondent issued a request for proposals in October, 1988, entitled "Turnpike Bridge Replacement Design/Build Project, State Road 91 (Florida's Turnpike)" (the "RFP"). The RFP solicited technical and price proposals for state Project Nos. 97890-3325 and 97930-3324. The State Projects involved the design and construction of temporary detours and permanent replacement bridges over canal crossings at several locations on Florida's Turnpike.
The RFP required bridges to be constructed as permanent structures at each of the project sites. Respondent advised interested parties at the scope of services meeting on October 18, 1988, that detour bridges would also be required at all of the project sites.
Local permitting was a key factor in the scope of services required for the projects contemplated in the RFP. Respondent advised interested parties, including Petitioner and Intervenor, at the scope of services meeting that Respondent had done no coordinating with local agencies and that local permitting was the responsibility of each party responding to the RFP ("offeror").
The local agency with responsibility for issuing permits for a majority of the canal crossings in the RFP was the Lake Worth Drainage District ("Lake Worth"). Both Petitioner and Intervenor inquired of Lake Worth while preparing their respective technical proposals to confirm Respondent's representation that bridges would be required for both detours and permanent structures at all project sites.
Lake Worth advised Petitioner that vertical clearances and hydraulics required bridges for both detours and permanent structures at all canal crossings subject to Lake Worth's jurisdiction. However, Lake Worth advised Intervenor, on or about October 26, 1988, that culverts would be acceptable for detours at three of the project sites.
Kenneth Bryant was the President of DSA Group, Inc. ("DSA"). DSA is a consulting engineering firm that was retained by Intervenor to assist in the preparation of its technical and price proposals. Mr. Bryant asked Lake Worth why culverts would not be acceptable for permanent structures if culverts were acceptable for detours. Lake Worth responded that consultants for Lake Worth would look into the hydraulics of the entire system.
Petitioner and Intervenor submitted their respective technical proposals on or about January 11, 1989. 2/ Intervenor used culverts in its technical proposal at those canal crossings where Lake Worth had approved the use of culverts for detours. Intervenor also included documentation of the approvals by Lake Worth. Petitioner included bridges in its technical proposal for all detours and permanent structures.
The date for submitting price proposals was changed by Respondent several times. The original date was scheduled for 30 days after receipt of the technical proposals. After several delays, price proposals were timely submitted by Petitioner and Intervenor on June 21, 1989.
The opening of price proposals was set for July 6, 1989, pursuant to a letter dated June 23, 1989, from Bill Deyo, Design/Build Coordinator for Respondent. The letter stated in relevant part:
... If approved by the Final Selection Committee the selected team will be posted on July 10, 1989, with the final awarding scheduled for July 14, 1989.
Award and execution of this contract is contingent upon approval of budget by the Governor's office.
Respondent selected Petitioner's proposal as number one and Intervenor's proposal as number two. The Final Selection Committee issued a "memo" on July 6, 1989, authorizing award of the contract. 3/ Award and execution of the contract was approved by the Governor's office. 4/
Rejection of All Proposals
On July 10, 1989, Respondent sent a telegram to each offeror cancelling the posting of "bid" tabulations for that day. On August 31, 1989, the Final Selection Committee issued a memorandum rescinding its authorization to award the contract for the RFP, and requested its Contracts Administration Office to notify all "...Design/Build teams of the decision to REJECT all price proposals."
On September 12, 1989, Respondent notified all offerors by certified mail of Respondent's decision to reject all "bids". No reason for Respondent's rejection of all price proposals was stated in the certified letter. At that time, offerors were not otherwise advised by Respondent of the reason for the rejection.
Respondent rejected all price proposals based upon a substantial reduction in the scope of services required for the RFP. Between October, 1988, and August 31, 1989, Lake Worth determined that culverts would be acceptable instead of bridges at five of the six project sites within the jurisdiction of Lake Worth. Lake Worth's change in position substantially reduced the scope of services required in the RFP. The value of that reduction in the scope of services was approximately $3.6 million. 5/
Respondent knew or should have known from the technical proposal submitted by Intervenor on January 11, 1989, that the scope of services required in the original; RFP had been reduced to the extent Lake Worth had approved the use of culverts instead of bridges for the detours at some of the project sites. Respondent did not investigate the potential reduction in the scope of services until after the opening of price proposals on July 6, 1989.
The parties stipulated at the formal hearing that Respondent's rejection of all price proposals was not at issue. Therefore, the question of whether Respondent's rejection of all proposals was arbitrary, capricious, or beyond the scope of Respondent's discretion as a state agency is not at issue in this proceeding. 6/
Respondent's Existing Rule
The legislature required Respondent to adopt by rule procedures for administering combined design/build contracts. Section 337.11(5)(b), Florida Statutes. Accordingly, Respondent adopted Florida Administrative Code Rule 14- 91.006 on March 13, 1988 ("Rule 14-91.006").
17. Rule 14-91.006(5) provided:
The Deputy Assistant Secretary for Technical Policy and Engineering Services, jointly with the Deputy Assistant Secretary representing the District in which the project is located, may determine it is in the best interest of the state to provide funds to firms selected for preparation of technical and price proposals in response to the Design Criteria Package. Each firm selected shall receive identical fixed fees for this work.
Specific Authority 334.044(2) 337.11(5)(b) F.S. Law implemented 337.11(5) F.S. History-New 3-13-88.
(emphasis added)
Rule 14-91.006(5) was adopted to facilitate competitive responses to a request for proposals by paying fixed fees to firms selected by Respondent to prepare technical and price proposals. Rule 14-91.006(5) was also adopted so that Respondent could compensate offerors, retain their technical proposals, and use the design concepts on similar projects.
Rule 14-91.006 was amended on June 13, 1990, in relevant part, by repealing Rule 14-91.006(5). The repeal of Rule 14-91.006(5) occurred approximately 33 days after the date of the formal hearing but before the entry of a final order in this proceeding. 7/
Request for Payment
After Respondent notified offerors of the rejection of all price proposals, Petitioner and Intervenor requested Respondent to make a determination of whether it was in the best interest of the state to provide funds to Petitioner and Intervenor for the preparation of their respective technical and price proposals in accordance with Rule 14-91.006(5). Petitioner and Intervenor requested on several occasions that the Deputy Assistant Secretary for Technical Policy and Engineering Services jointly with the Deputy Assistant Secretary for the Turnpike convene a meeting to make the determination authorized in Rule 14-91.006(5)
Informal conferences with Respondent's representatives were requested on at least four occasions to discuss the issue of Petitioner's compensation for its technical and price proposals. Respondent's representatives met with Petitioner a few days before the formal hearing on May 10, 1990. Respondent stated that it had no statutory authority to compensate Petitioner for Petitioner's technical and price proposals in the absence of a contract.
Respondent neither contracted with Petitioner and Intervenor to pay for their technical and price proposals nor offered to enter into such a contract. Petitioner offered to enter into such a contract and also offered to provide computer tapes containing plans and specifications required in the RFP if Respondent would agree to compensate Petitioner.
Repeal of Respondent's Existing Rule
Sometime between March 13, 1988, and October, 1988, Respondent considered the payment of funds pursuant to Rule 14-91.006(5) in a design/build project that preceded the RFP. 8/ Respondent requested funds from the comptroller but was advised by the comptroller that no funds could be provided pursuant to Rule 14-91.006(5) in the absence of a contract. Respondent's general counsel confirmed that there was no statutory authority to provide funds pursuant to Rule 14-91.006(5) in the absence of a contract.
Respondent took no public action to repeal Rule 14- 91.006(5) until March 16, 1990, approximately two years after the earliest date Respondent could have received the directives from its comptroller and general counsel advising Respondent that Rule 14-91.006(5) exceeded its statutory authority. Instead of formally repealing Rule 14-91.006(5), Respondent followed the comptroller's recommendation to obtain legislative authority to pay funds pursuant to Rule 14- 91.006(5). Respondent unsuccessfully proposed such legislation to the House Transportation Committee during the 1989 legislative session. In November, 1989, Respondent drafted an amendment to Rule 14-91.006 which, in relevant part, repealed Rule 14-91.006(5). Notice of the proposed formal repeal of Rule 14- 91.006(5) was published in the Florida Administrative Weekly on March 16, 1990. The amendment to Rule 14-91.006 was adopted and Rule 14-91.006(5) was formally repealed through appropriate rulemaking procedures on June 13, 1990.
During 12 design/build projects, Respondent never paid funds to any firm for technical and price proposals when the firm had not been awarded a contract pursuant to a request for proposals. Respondent never adopted standards for determining the proper timing for payment of funds pursuant to Rule 14-91.006(5). Respondent never adopted standards for determining when it would be in the best interest of the state to provide funds pursuant to Rule 14- 91.006(5).
Respondent refused to apply Rule 14-91.006(5) and refused to determine if it would be in the best interest of the state to provide funds to Petitioner and Intervenor for their respective technical and price proposals. The sole reason given by Respondent for its refusal to apply Rule 14-91.006(5) was the lack of statutory authority to provide funds to firms selected for preparation of technical and price proposals in the absence of a contract.
Respondent's representatives never considered applying Rule 14- 91.006(5). When Respondent's representatives met with Petitioner shortly before May 10, 1990, they stated that they would like to provide the requested funds and that such funds should be provided, but that no statutory authority existed for providing such funds in the absence of a contract. The signatories to the memorandum from the Final Selection Committee, dated August 31, 1989, never met until after the meeting that took place shortly before May 10, 1990, to discuss payment for the technical and price proposals submitted by Petitioner and Intervenor. When they did meet, it was determined that no statutory authority existed to provide funds pursuant to Rule 14-91.006(5) in the absence of a contract.
Respondent never intended to compensate either Petitioner or Respondent for their respective technical and price proposals in the absence of a contract. Respondent never conducted any review of the technical and price proposals prepared and submitted by Petitioner and Intervenor for the purposes described in Rule 14-91.006(5). Two significant factors to be considered in making such a determination, however, would have been the benefit derived by Respondent from the technical and price proposals submitted and the effect that the provision of such funds would have on competition.
Best Interest of the State
Payment of funds to Petitioner and Intervenor would have been in the best interest of the state within, the meaning of Rule 14-91.006(5). 9/ Respondent derived substantial benefit from the technical and price proposals submitted by Petitioner and Intervenor including a reduction in the cost of State Project Nos. 97890-3325 and 97930-3324 in the approximate amount of $3.6 million. The fair market value of the proposals submitted by Petitioner and Intervenor was between $500,000.00 and $700,000.00 for each of the two proposals.
All of the plan sheets and drawings were completed. The plans were prepared in accordance with Respondent's criteria for plan preparation. Every detail was followed and a complete maintenance of traffic plan was included. Where bridges were designed, the bridge calculations were included. Very little work was left to be done. In order to price out a project of the magnitude and scope required in the RFP, the technical proposals had to be very close to final design.
Petitioner's technical proposal for both projects contemplated in the RFP was recorded on magnetic media in Petitioner's computer automated drawing machine. The magnetic media files could be easily transferred to Respondent. Petitioner at all times was ready, willing, and able to make such a transfer if Respondent had agreed to provide funds to Petitioner pursuant to Rule 14- 91.006(5).
A great deal of valuable information was contained in the technical proposals prepared and submitted by Petitioner and Intervenor. Eighty to 90 percent of the engineering decisions were made and depicted either on the preliminary drawings or within the calculations included in the technical proposals.
Information gathering and coordination with local permitting agencies, including Lake Worth, was a major component of designing and building the projects described in the RFP. Those kinds of activities required a good deal of time from higher level personnel in each organization.
Respondent derived benefit from the technical proposals prepared by Petitioner and Intervenor irrespective of whether bridges or culverts are ultimately used at the canal crossings in the RFP. The only change that would be required would be to erase the bridges and insert details for a culvert crossing.
Respondent derived benefit from the technical proposals prepared by Petitioner and Intervenor with respect to the projects contemplated in the RFP and similar projects in the future. Respondent can "relet" the project in the future and intends to do so. 10/
Respondent has retained the technical and price proposals submitted by Petitioner and Intervenor pending the outcome of this proceeding. Respondent's unwritten policy is to either return technical and price proposals to their offerors or destroy such proposals upon the concurrence of the, appropriate offeror. After this proceeding is concluded, Respondent intends to either return or dispose of the technical and price proposals submitted by Petitioner and Intervenor in a manner consistent with its unwritten policy.
Reliance On Respondent's Existing Rule
Petitioner and Intervenor were aware of Rule 14-91.006(5) in preparing and submitting their respective technical and price proposals. Neither Petitioner nor Intervenor, however, presented evidence of the extent to which they may have relied on Rule 14-91.006(5). Petitioner and Intervenor did not demonstrate that they were induced by Rule 14-91.006(5) to respond to the RFP or that Rule 14-91.006(5) was even a material or significant consideration to them. Payment of funds pursuant to Rule 14-91.006 (5) was neither addressed in the RFP nor discussed by the parties prior to Respondent's rejection of all price proposals. The record leaves open to speculation whether Petitioner and Intervenor would not have responded to the RFP in the absence of Rule 14- 91.006(5).
CONCLUSIONS OF LAW
Jurisdiction And Burden of Proof
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this proceeding pursuant to Section 120.57(1), Florida Statutes. 11/ The parties were duly noticed for the formal hearing.
The undersigned has no jurisdiction to determine issues cognizable in the circuit courts of this state, including claims based upon quantum meruit or implied contract. Boyce Construction Corporation v. District Board of Trustee,
414 So.2d 634 (Fla. 5th DCA 1982); Beefy Trail, Inc. v. Beefy King International, Inc., 267 So.2d 853 (Fla. 1st DCA 1972). 12/ Pursuant to the stipulation of the parties at the formal hearing, the question of whether Respondent abused its discretion in rejecting all technical and price proposals is not at issue in this proceeding.
Petitioner and Intervenor each have the burden of proof in this proceeding. A preponderance of the evidence must demonstrate that Respondent should be required to provide funds to Petitioner and Intervenor for their respective technical and price proposals pursuant to Rule 14-91.006(5). A party attempting to show the affirmative of a position has the burden of proof. Department of Corrections v. Dixon, 436 So.2d 320, 321 (Fla. 1st DCA 1983); Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977). 13/
Repeal of Respondent's Existing Rule
The definition of a rule in Section 120.52(16), Florida Statutes, includes the repeal of a rule. The repeal of Rule 14-91.006(5) after the date of the formal hearing but before the effective date of the final order may be considered in recommending final agency action. Baptist Hospital, Inc. v. State, Department of Health and Rehabilitative Services, 500 So.2d 620, 625 (Fla. 1st DCA 1987) Turro v. Department of Health and Rehabilitative Services,
458 So.2d 345, 346 (Fla. 1st DCA 1984). But see, York v. State ex rel. Schwaid
10 So.2d 813, 815 (Fla. 1943); Gulfstream Park Racing Association, Inc., v. Department of Business Regulation, 407 So.2d 263, 265 (Fla. 3rd DCA 1981); Sexton Cove Estates, Inc., v. State Pollution Control Board, 325 So.2d 468 (Fla. 1st DCA 1976); City of Margate v. Amoco Oil Company, 546 So.2d 1091, 1094 (Fla. 4th DCA 1989).
A procedural rule which takes effect after the commencement of a formal hearing may be considered in recommending final agency action. Turro,
458 So.2d at 346. Rule 14-91.006(5) was a procedural rule. Section 337.11(5)(b), Florida Statutes, mandates that the agency "...shall adopt by rule procedures for administering combined design and construction contracts." Rule 14-91.006(5) was promulgated to implement Section 337.11(5)(b). Respondent had no authority under Section 337.11(5)(b) to promulgate any rule except a procedural rule.
In Turro, 458 So.2d at 346, Florida Administrative Code Rule 10- 5.11(23) was determined to be a procedural rule. It provided a methodology for establishing the need to either add additional beds to existing hospital facilities or to create new beds by building new hospitals. Like the rule in Turro, Rule 14-91.006 (5) was intended to establish the methodology for providing funds to firms selected for preparation of technical and price proposals in response to a design criteria package. The methodology established in Rule 14-91.006(5) was a discretionary determination by designated persons that the payment of funds to firms selected to respond to the RFP would be in the best interest of the state.
Rule 14-91.006(5) was a procedural rule. Its repeal was also a rule within the meaning of Section 120.52(16), Florida Statutes. The repeal of a procedural rule after the commencement of the formal hearing may be considered as a rule for the purpose of recommending final agency action. In Turro, the court stated:
We recognize that application of a newly enacted rule to proceedings which have commenced prior to the rule's effective date could raise due process issues if, for example, the rule stated a novel requirement with respect to which a party had not been given an opportunity
to conform its proof. However, we find no basis for any such due process challenge here.
Turro, 458 So.2d at 346.
Like Turro, there is no due process impediment in this proceeding that precludes the repeal of Rule 14-91.006(5) from being considered in recommending final agency action. Petitioner and Intervenor were aware of the impending repeal of Rule 14-91.006(5) well before the date of the formal hearing.
Final agency action may be based upon unwritten policy that is consistent with the repeal of Rule 14-91.006(5). In Baptist Hospital, Inc., 500 So.2d at 625, the court upheld agency action taken to effectuate incipient policy where the incipient policy was consistent with a rule published prior to the formal hearing but not effective until after the formal hearing. The repeal of Rule 14-91.006(5) was a rule within the meaning of Section 120.52(16), Florida Statutes. It was published prior to the formal hearing but was not effective until after the formal hearing. Respondent's unwritten policy of not
enforcing Rule 14-91.006(5) was consistent with the repeal of that rule. Respondent had been involved in approximately 12 design/build projects. Respondent never paid funds to any firm for technical and price proposals when the firm had not been awarded a contract pursuant to a request for Respondent never adopted any standards for the application of Rule 14-91.006(5)
The purpose of a proceeding under Section 120.57(1), Florida Statutes, is to formulate final agency action, not to review action taken earlier and preliminaries. Couch Construction Company, Inc., v. Department of Transportation, 361 So.2d 172, 176 (Fla. 1st DCA 1978); McDonald v. Department of Banking and Finance, 346 So.2d 569, 584 (Fla. 1st DCA 1977). Respondent is precluded from applying Rule 14-91.006(5) after it was repealed in accordance with the rulemaking requirements in Section 120.54.
No Repeal of Respondent's Existing Rule
The repeal of Rule 14-91.006(5) is a rule within the meaning of Section 120.52(16), Florida Statutes. Some courts have held that administrative rules may not be applied retroactively. York, 10 So.2d at 815; Gulfstream Park Racing Association, Inc., 407 So.2d at 265; Sexton Cove Estates, Inc., 325 So.2d 468; City of Margate, 546 So.2d at 1094. If those decisions preclude application of the repeal of Rule 14-91.006(5) in this proceeding, such a repeal cannot be considered in recommending final agency action.
Prior to 1984, Section 120.68(12)(b), Florida Statutes (1983), required remand of a case if the exercise of agency discretion was "[i]nconsistent with an agency rule" and deviation from the rule was not "explained by the agency...". An agency, therefore, could deviate from its rule in a particular case if the agency exposed and elucidated its reasons sufficiently to permit judicial review within the meaning of Section 120.68(12)(b). McDonald, 346 So.2d at 583; Price Wise Buying Group, 343 So.2d 115, 116 (Fla. 1st DCA 1977)). In 1984, the legislature repealed the statutory authority that had allowed deviation from an existing rule if such deviation was explained by the agency. In 1989, Respondent could not legally deviate from a valid existing rule regardless of Respondent's explanation for such deviation. Boca Raton Artificial Kidney Center, Inc. v. Department of Health and Rehabilitative Services, ,493 So.2d 1055, 1057 (Fla. 1st DCA 1986); Gadsden State Bank v. Lewis, 348 So.2d 343 (Fla. 1st DCA 1977). When Respondent refused to apply Rule 14-91.006(5), Respondent deviated from its existing rule.
The prohibition against agency action that is inconsistent with an existing rule does not apply if the existing rule is invalid or if the agency's deviation from the existing rule does not involve the exercise of discretion. An agency has no authority to enforce or apply an invalid rule. Great American Banks, Inc., v. Division of Administrative Hearings, Department of
Administration, 412 So.2d 373, 375 (Fla. 1st DCA 1982). The prohibition against enforcement of an invalid rule," is not subject to agency discretion within the meaning of Section 120.68(12)(b), Florida Statutes. If Rule 14-91.006(5) was invalid, any attempt to enforce such a rule would have been outside the scope of Respondent's delegated authority and would have beers illegal. Lee v. Division of Florida Land Sales and Condominiums, 474 So.2d 282, 284 (Fla. 5th DCA 1985); Department of Environmental Regulation v. Falls Chase Special Taxing District,
424 So.2d 787 (Fla. 1st DCA 1982). A rule is invalid to the extent it conflicts with a statute. Great American Banks, Inc., 412 So.2d at 375. Therefore, action inconsistent with Rule 14-91.006(5) was proper if Rule 14-91.006(5) was an invalid rule in conflict with a statute or if Respondent's refusal to apply Rule 14- 91.006(5) did not involve the exercise of discretion.
The undersigned has jurisdiction to determine the invalidity of a rule in a proceeding conducted pursuant to Section 120.57(1), Florida Statutes. Jurisdiction to determine the invalidity of a rule in administrative proceedings is not limited by the express authority for rule challenges in Sections 120.54(4)(a) and 120.56(1). Sections 120.54(4)(a) and 120.56(1) provide that a determination of the invalidity of a rule "may" be made pursuant to either Section 120.54 (for a proposed rule) or Section 120.56 (for an existing rule). Sections 120.54(4)(d) and 120.56(5) provide that "...Failure to proceed under either section] shall not constitute failure to exhaust administrative remedies."
Section 120.54(4)(d), Florida Statutes, and the
operative language in Section 120.56(5) 14/ were intended by the legislature to remove any doubt that jurisdiction was granted in Chapter 120 to determine the invalidity of a rule in a proceeding conducted pursuant to Section 120.57(1). State ex rel. Department of General Services v. Willis, 344 So.2d 580, 592 (Fla. 1st DCA 1977). In Willis, the court concluded that the relevant statutory provisions were intended:
... To avoid any appearance of requiring a substantially affected party to initiate duplicative 120.54 or proceedings if his rule challenge is regularly presented with other grievances under 120.57, resulting in final agency action and a petition for judicial review. 15/
Willis, 344 So.2d at 592.
The statutory construction in Willis has been judicially approved in subsequent cases. In McDonald, the court stated:
... [W]e have recognized the availability of an administrative remedy against any agency policy statement of general applicability which has not been adopted through rulemaking. Section 120.56;
Dep't of Administration v. Stevens, 344 So.2d 290 (Fla. 1st DCA, 1977). A
remedy is available also in Section
120.57 proceedings affecting a party's substantial interests. State ex rel. Department of Gen. Serv. v. Willis, 344 So.2d 580, 591-92 (Fla. 1st DCA 1977)
McDonald, 346 So.2d at 580.
The statutory construction in Willis was more recently approved in St. Joe Paper Company v. Florida Department of Natural Resources, 536 So.2d 1119, 1122 (Fla.
1st DCA 1989).
Judicial construction of the relevant portions of Section 120.54(4)(d) and 120.56(5), Florida Statutes, has been legislatively approved through long- standing reenactment. Where statutory provisions have received a definite judicial construction, the subsequent reenactment of those provisions by the
legislature may be presumed to constitute legislative approval of the judicial construction. State ex rel. Szabo Food Services, Inc., v. Dickinson, 286 So.2d
295 (#1a. 1973); Walsingham v. State, 250 So.2d 857 (Fla. 1971); Collins Investment Co. v. Metropolitan Dade County, 164 So.2d 806 (Fla. 1964); Advisory Opinion to Governor, 96 So.2d 541 (Fla. 1957); Depfer v. Walker, 169 So 660 (Fla. 1935); Bridges v. Williamson, 449 So.2d 400 (Fla. 2nd DCA 1984); Davies v. Bossert, 449 So.2d 418 (Fla. 3rd DCA 1984); Aronson v. Congregation Temple De Hirsch, 138 So.2d 69 (Fla. 3rd DCA 1962). Where a statute is reenacted and the judicial construction of the statute is presumed to have been adopted in the reenactment, courts are barred from changing the earlier judicial construction. Deltona Corporation v. Kipnis, 194 So.2d 295 (Fla. 2nd DCA 1966).
Proceedings conducted pursuant to Section 120.57(1), Florida Statutes, are "...infused by Chapter 120 with concern for agency policy as well as facts and law,..." and provide a forum for challenging agency policy. McDonald, 346 So.2d at 582-583. Agency policy that has general applicability is a rule. McDonald, 346 So.2d at 581. Cf. Friends of the Everglades, Inc., v. Department of Community Affairs, 495 So.2d 1193, 1194 n. 2 (Fl.. 3rd DCA 1986). The incentive for rulemaking in Chapter 120 is the invalidation of agency action taken to effectuate rules in conflict with statutory requirements. Cf. McDonald, 346 So.2d at 580. Jurisdiction to determine the invalidity of a rule is necessary to permit incentives for rulemaking to operate in proceedings conducted pursuant to Section 120.57(1). 16/
Invalidity of Respondent's Existing Rule
Respondent had no statutory authority to provide funds to Petitioner and Intervenor pursuant to Rule 14-91.006(5) in the absence of a contract. An agency's power to contract is limited by statutes requiring competitive procedures. Robert G. Lassiter & Co. v. Taylor, 128 So 14 (Fla. 1930). Statutory limits on Respondent's power to contract prohibited Respondent from entering into a contract with more than one firm for preparation of technical and price proposals submitted in response to the RFP. Sections 287.055(5), 337.11(3)(a), and 337.11(5)(a). 17/
None of the exceptions to the requirements for competitive procedures in either Chapters 287 or 337, Florida Statutes, apply to the facts in this proceeding. The value of each proposal prepared and submitted by Petitioner and Intervenor exceeded the threshold amounts for exceptions in Sections 287.055(3)(a), (4)(c), (5)(a), 287.057(4), and 337.02(1). The RFP was not an emergency within the meaning of Sections 337.02(2) and 337.11(4). Neither Petitioner nor Intervenor was a "sole source" within the meaning of Section 287.055(5). Since Respondent will not retain and reuse the proposals prepared and submitted by Petitioner and Intervenor, the proposals do not qualify for the exception in Section 287.055(11).
The RFP was issued for a design/build project subject to the provisions of Section 337.11(5), Florida Statutes. Section 287.055(10). The RFP was not issued for professional services to provide a design criteria package within the meaning of Section 287.055(3)-(5). Respondent was expressly prohibited by Section 287.055(10)(b) from entering into a contract for professional services for a design criteria package with either Petitioner or Intervenor without first complying with the competitive procedures in Section 287.055(3)-(5).
Rule 14-91.006(5) authorized the payment of funds to more than one firm for technical and price proposals submitted in response to the same request for proposals. persons were authorized to determine if it was in the best interest of the state to provide funds to:
"...firms selected for preparation of technical and price proposals in response to the Design Criteria Package" (emphasis added).
"Each firm..." selected for preparation of technical and price proposals was required by Rule 14-91.006(5) to receive "identical fixed fees...". By authorizing the payment of funds to more than one firm pursuant to agency discretion, Rule 14-91.006(5) conflicted with statutory requirements that Respondent pay funds to one firm, in a single contract, pursuant to procedures.
Rule 14-91.006(5) could not reasonably be interpreted as limiting the payment of funds to one firm. Such an interpretation would require that relevant terms in Rule 14- 91.006(5) be given a meaning other than their plain and ordinary meaning. In interpreting rules, words should. be given their plain and ordinary meaning. Boca Raton Artificial Kidney Center, Inc., 493 So.2d at 1057. If a rule as it reads proves impractical, it can be amended or repealed through statutory rulemaking procedures. Absent such amendment or repeal, expedience cannot dictate the terms of a rule. Id. 18/
Construing Rule 14-91.006(5) so that funds were paid to one firm would be inconsistent with the purposes for which Rule 14-91.006(5) was adopted. Rule 14-91.006(5) was adopted to encourage the number of responses to requests for proposals and to enable smaller firms to compete with larger firms in preparing technical and price proposals. The payment of funds pursuant to Rule 14- 91.006(5) was in ended to accomplish both purposes by defraying the cost of technical add price proposals submitted by all firms who responded to ,'the same request for proposals.
A rule is invalid to the extent it conflicts with a statute. Great American Banks, Inc., 412 So.2d at 375. Rule 14-91.006 (5) was invalid to the extent it authorized the payment of funds to more than one firm for technical and price proposals submitted in response to the same request for proposals. The payment of funds to multiple firms pursuant to agency discretion conflicted with statutory requirements that funds be paid to one firm, in a single contract, pursuant to competitive procedures.
Respondent had no authority to promulgate Rule 14-91.006(5). Respondent had authority to promulgate a procedural rule to implement Section 337.11(5)(b), Florida Statutes. Instead, Respondent promulgated a rule that conflicted with statutory limits on Respondent's power to contract. Sections 287.055(5), 337.11(3)(a), and 337.11(5)(a). The rulemaking process cannot be used to make legal that which there was no authority to do in the first place. Great American Banks, Inc., 412 So.2d at 375. Any attempt to apply Rule 14- 91.006(5) without statutory authority would have been illegal and clearly erroneous. 19/
Refusal to Apply Respondent's Existing Rule Absent Formal Repeal
Once Respondent correctly determined that Rule 14-91.006 (5) was invalid, Respondent's refusal to apply an invalid rule was required by operation of law and was not subject to Respondent's discretion. Great American Banks,
Inc, 412 So.2d at 375; Lee v. Division of Florida Land Sales and Condominiums,
474 So.2d at 284; Falls Chase Special Taxing District, 424 So.2d at 787. Even unavoidable action, however, must be undertaken in a manner that does not deny due process to an affected person. See, Washington v. Kirksey, 811 F.2d 561 (11th Cir. 1987). 20/
There are no due process requirements in Chapter 120, Florida Statutes, that prescribe the manner in which an agency must refuse to apply an invalid rule when the agency first determines that an existing rule is in conflict with a statute and is invalid. Similarly, judicial decisions holding that an attempt by an agency to apply an invalid rule is illegal prescribe no due process requirements for tee manner in which the agency must refuse to act. When Respondent first determined that Rule 14-91.006(5) was invalid, Respondent was required by operation of law to refuse to apply such a rule. The refusal to apply an invalid rule was subject to neither Respondent's discretion nor the requirements of due process.
After Respondent first determined that Rule 14-91.006(5) was invalid, Respondent's decision to refuse to apply an invalid rule on a de facto basis in all design build projects during a period of approximately two years without repealing the invalid rule involved the exercise of agency discretion. Agency action that involves the exercise of discretion is subject to administrative due process and reasonable care. While there is no express statutory requirement in Chapter 120, Florida Statutes, for an agency to either provide notice of an invalid rule or repeal such a rule, notice is an administrative due process protection that Chapter 120 is intended to preserve. One of the principal purposes of Chapter 120 is to:
...'[C]lose the gap between what the agency and its staff know about the agency's law and policy and what an outsider can know.'
McDonald, 346 So.2d at 580.
Agency action must also be carried out responsibly. McDonald 346 So.2d at 583. Even gratuitous agency action must be carried out with reasonable care. Tri- State Systems, Inc. v. Department of Transportation, 500 So.2d 212, 216 (Fla.
1st DCA 1986).
Administrative due process and reasonable care are appropriate standards by which to determine the validity of Respondent's exercise of discretion. The definition of a rule in Section 120.52(16), Florida Statutes, includes the repeal of a rule. If judicial decisions allowing consideration of the repeal of Rule 14-91.006(5) control this proceeding, 21/ the exercise of Respondent's discretion was undertaken in accordance with statutorily prescribed rulemaking requirements. If judicial prohibitions against retroactive application of administrative rules preclude application of the repeal of Rule 14-91.006(5) in this proceeding, 22/ the validity of the method followed by Respondent in the exercise of its discretion must be determined without considering the repeal of Respondent's rule.
Respondent's exercise of discretion in refusing to apply Rule 14- 91.006(5) on a de facto basis for approximately two years constituted agency action subject to review under Chapter 120, Florida Statutes. Agency action includes action "taken or omitted". McDonald, 346 So.2d at 584. A moratorium that departs from a published rule for a finite period constitutes agency action
subject to review under Chapter 120. Balsam v. Department of Health and Rehabilitative Services, 452 So.2d 976, 977 (Fla. 1st DCA 1984). The effect of Respondent's refusal to apply Rule 14-91.006(5) on a de facto basis for approximately two years was equivalent to the moratorium for a finite period in Balsam. Agency action need not occur in any particular form and may be "unwritten" or "invisible". Straughn v. O'Riordan, 338 So.2d 832, 834 n. 3
(Fla. 1976).
Every agency action either is a written rule or order or is an incipient rule or order. McDonald 346 So.2d at 577, 582 (citing Willis, 344 So.2d at 584). 23/ Statutory rulemaking procedures must be followed as a predicate to the validity of agency action taken to effectuate an incipient rule. Sections 120.54(1) and 120.68(12)(b), Florida Statutes; Straughn, 338 So.2d at 834 n. 3; Boca Raton Artificial Kidney Center, Inc., 493 So.2d at 1057; General Development Corp. v. Division of State Planning, Department of Administration, 353 So.2d 1199, 1209 (Fla. 1st DCA 1978); Gadsden State Bank,
348 So.2d 343; McDonald, 346 So.2d at 580-581; State, Department of Administration v. Stevens, 344 So.2d 290 (Fla. 1st DCA 1977); Price Wise Buying Group, 343 So.2d at 116. Invalidation of agency action taken to effectuate an incipient rule is the necessary result under Chapter 120 if statutorily required rulemaking procedures are not to be atrophied by nonuse. Straughn v. O'Riordan,
338 So.2d at 834; McDonald, 346 So.2d at 580.
Respondent's unwritten policy of refusing to apply Rule 14-91.006(5) on a de facto basis was an incipient rule that was adopted without following the rulemaking requirements in Section 120.54, Florida Statutes. Respondent's unwritten policy satisfied the test of general applicability that distinguishes a rule from an order. Friends of the Everglades, Inc., 495 So.2d at 1194 n.
; McDonald, 346 So.2d at 580-581. It was consistently applied throughout its existence to all offerors on an industry-wide basis in all design/build projects. Public Service Commission v. Central Corporation, 551 So.2d 568, 570 (Fla. 1st DCA 1989). The directives from Respondent's general counsel and comptroller rescinded the prior interpretation of Section 337.11(5), which was made when Rule 14-91.606(5) was first adopted, and substituted a new interpretation of the same statute. See, Price Wise Buying Group, 343 So.2d at
116 (holding that a declaratory statement rescinding the prior interpretation of a law and setting forth a new interpretation of the same law was a rule). Respondent's unwritten policy was intended to have the consistent effect of law without further action by Respondent. See, McDonald, 346 So.2d at 581. Respondent never adopted standards for applying Rule 14-91.006(5) and never intended to apply its rule. The sole reason given by Respondent for not applying Rule 14-91.006(5) in this proceeding was that there was no statutory authority to do so. 24/
The effect of agency policy determines whether it is a rule, not the form or appellation given to it by the agency. Cf. Amos v. Department of Health and Rehabilitative Services, 444 So.2d 43, 46-47 (Fla. 1st DCA 1983). In Balsam, 452 So.2d at 978, the court held that a moratorium which departed from a published rule for a finite period and which did not conform to statutory rulemaking requirements was itself an invalid rule. The effect of Respondent's unwritten policy in this proceeding was the same as the effect of the moratorium in Balsam. The definition of a rule in Section 120.52(16), Florida Statutes, includes the repeal of a rule. Respondent's de facto refusal to apply Rule 14- 91.006(5) had the same practical effect as did the de lure repeal of that rule.
A principal goal of Chapter 120 is:
... [T]he abolition of 'unwritten rules' by which agency employees can act with unrestrained discretion to adopt, change and enforce governmental policy. The term 'rule' was broadly defined in [CH.
120] to reach... invisible policy-making.
Straughn, 338 So.2d at 834 n. 3. 24
In order to achieve a principal goal of Chapter 120, incentives for rulemaking should be permitted to operate in proceedings conducted pursuant to Section 120.57(1), Florida Statutes. The incentive for necessary result that action taken to effectuate an incipient rule is invalid. McDonald, 346 So.2d at 580.
When the refusal to apply an invalid, existing rule involves both a non-discretionary act required by operation of law and a discretionary act undertaken to effectuate an incipient rule, the necessary result under Chapter 120, Florida Statutes, is to invalidate such a refusal solely for purposes that are within the scope of the agency's discretion. 25/ Purposes within the scope of agency discretion that may be achieved by the refusal to apply an invalid written rule are the repeal, amendment, or stay of such a rule. 26/ The refusal to apply an invalid written rule in conflict with a statute, therefore, is necessarily invalid under Chapter 120 only as a repeal, amendment, or stay of an existing rule. 27/
The fact that Respondent's refusal to 11 apply Rule 14-91.006(5) constituted invalid action undertaken to effectuate an incipient rule does not entitle Petitioner and Intervenor to an administrative remedy pursuant to an existing rule that is invalid. Any attempt to apply an invalid existing rule would be beyond the scope of Respondent's delegated authority, illegal, and clearly erroneous. 28/ Unless Respondent is estopped from asserting the invalidity of Rule 14-91.006(5), the administrative remedy for Respondent's invalid action taken to effectuate an incipient rule is confined to invalidation of Respondent's action as a repeal, amendment, or stay of an invalid existing rule.
Estoppel
Petitioner and Intervenor assert that Respondent is estopped from claiming there was no statutory authority to enforce Rule 14-91.006(5). Respondent has faced the doctrine of equitable estoppel previously in Tri-State Systems, Inc., v. Department of Transportation, 500 So.2d 212, 216 (Fla. 1st DCA 1986).
In Tri-State Systems, the Department of Transportation (the "Department") issued sign permits to a company subsequently acquired by Tri- State Systems, Inc. Prior to the acquisition, Tri-State Systems, Inc., was provided with further assurances by the Department's personnel that the sign permits were valid. In reliance upon the Department's further assurances, Tri- State Systems, Inc., paid fob the permits and executed long term leases covering the sites at which the signs were to be located.
In Tri-State Systems, the court held that the doctrine of equitable estoppel may be applied against the state in exceptional circumstances if three elements are present. First, there must be a representation of a material fact
that is contrary to a later-asserted position. Second, there must be reliance upon that representation. Third, there must be a change in position detrimental to the party claiming estoppel which is caused by the misrepresentation and reliance thereon. Tri-State Systems, Inc., 500 So.2d at 216.
Respondent did not represent a material fact and then take a contrary later asserted position Respondent's personnel made no further assurances as to the validity of Rule 14-91.006(5) or the payment of funds pursuant to Rule 14- 91.006(5). Nor did Respondent make any further assurances that it had done any coordination with local permitting agencies. Instead, Petitioner and Intervenor had actual notice at the scope of services meeting that Respondent had done no coordination with local permitting agencies. Respondent's later contrary position that bridges would not be required at all project sites was based upon facts not known to Respondent until Lake Worth changed its position.
A misrepresentation may be made by silence if one has a duty to speak 29/ and his silence has a direct bearing upon the action of the party claiming estoppel. 30/ Respondent was statutorily required to amend or repeal its published rule in a timely and orderly manner. McDonald, 346 So.2d at 580.
When Respondent permitted Rule 14-91.006(5) to exist as a published rule for approximately two years after Respondent knew there was no statutory authority for the rule, Respondent remained silent when it had a duty to speak. Notice is one of the due process requirements that statutory rulemaking procedures are intended to satisfy. Central Corporation, 551 So.2d at 571; McDonald, 346 So.2d at 581. An action undertaken even gratuitously must be performed with reasonable care. Tri-State Systems, 500 So.2d at 216. See also, Kirksey, 811 F.2d 561 (holding that even though the action of an Alabama school board was unavoidable, the school board could not take such action in a manner that denied its employee due process).
Petitioner and Intervenor failed to show that Respondent's silence when it had a duty to speak concerning the invalidity of Rule 14-91.006(5) had a direct bearing on Petitioner and Intervenor. The evidence was insufficient to determine that Rule 14-91.006(5) induced Petitioner or Intervenor to respond to the RFP or that Rule 14-91.005(6) was even a material or significant consideration to either Petitioner or Intervenor in preparing their respective proposals. Therefore, Respondent did cot misrepresent the validity of Rule 14- 91.006(5) for purposes of the doctrine of equitable estoppel by remaining silent when Respondent had a duty to speak.
Even if all three elements of estoppel were present in this proceeding, the doctrine of equitable estoppel does not operate against the state if estoppel would operate to require payment of funds under circumstances that are forbidden by law. Reedy Creek Improvement District v. State, Department of Environmental Regulation, 486 So.2d 642 (Fla. 1st DCA 1986); Greenhut Construction Company v. Knott, 247 So.2d 517 (Fla. 1st DCA 1971). Nor does estoppel operate against the state if Respondent's action was caused by a mistake of law rather than a mistake of fact. Godson v. Town of Surfside, 8 So.2d 497 (Fla. 1942); Salz v. Department of Administration, 432 So.2d 1376 (Fla. 3d DCA 1983); City of Miami Beach v. Meiselman, 216 So.2d 774 (Fla. 3d DCA 1968) cert. denied, 225 So.2d 533 (Fla. 1969).
The fact that Respondent's action was based upon opinions may not be sufficient to characterize it as a mistake of law. A representation that would be considered an opinion will be considered a fact where the party making the statement has exclusive or superior knowledge. Atlantic National Bank of Florida v. Vest, 480 So.2d 1328 (Fla. 2d DCA 1986); Ramel v. Chasebrook
Construction Company, 135 So.2d 887 (Fla. 2d DCA 1961). 31/ However, estoppel does not operate in any event if the payment of funds is not authorized by law. Since the payment of funds to Petitioner and Intervenor in accordance with Rule 14- 91.006(5) is not authorized by statute, it is not necessary to determine whether Respondent had exclusive or superior knowledge of the lack of statutory authority for Rule 14-91.006(5). 32/
This is not a proceeding in which Respondent's refusal to apply Rule 14-91.006(5) was engendered by bad motives. Respondent's refusal to apply an invalid written rule was undertaken both as a non-discretionary act required by operation of law and as a discretionary act undertaken to effectuate the repeal, amendment, or stay of an existing rule. Respondent's non-discretionary act was required by operation of law and was valid. If the repeal of Rule 14-91.006(5) in accordance with the statutory rulemaking process is considered in this proceeding, Respondent's discretionary act was undertaken in accordance with rulemaking requirements. If such a repeal cannot be considered, however, Respondent's discretionary act was undertaken to effectuate an incipient rule in violation of the rulemaking requirements in Section 120.54, Florida Statutes. The repeal of Rule 14-91.006(5) pursuant to Section 120.54 when Respondent first learned of the rule's invalidity, rather than approximately two years later, may have closed the gap between what Respondent knew about its law and policy and what outsiders knew of Respondent's law and policy. Even though Rule 14- 91.006(5) was not repealed and remained an existing rule for approximately two years after Respondent determined that it was invalid, the rule was in conflict with a statute and any attempt to apply such a rule would have been illegal and clearly erroneous. Even if Respondent's refusal to apply Rule 14-91.006(5) was invalid action taken to effectuate an incipient rule, it would not entitle Petitioner and Intervenor to an administrative remedy under an existing rule that was in conflict with a statute and invalid. Since Respondent is not estopped from asserting the invalidity of its own rule, the administrative remedy available to Petitioner and Intervenor is confined to invalidation of Respondent's action as a repeal, amendment, or stay of an existing rule in violation of the rulemaking requirements in Section 120.54. If another remedy is available to Petitioner and Intervenor for such action, that remedy is available' in another forum.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that:
Petitioner's written formal protest should be DENIED;
Respondent should return the respective technical and price proposals to Petitioner and Intervenor;
Respondent should not provide funds to either Petitioner or Intervenor pursuant to former Rule 14-91.006(5).
DONE AND ORDERED in Tallahassee, Leon County, Florida, this 10th day of January, 1991.
DANIEL MANRY
Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk, of the Division of Administrative Hearings this 10th day of January, 1991.
ENDNOTES
1/ The first motion waived the parties' statutory right to an expedited hearing.
2/ A third response was determined by Respondent to be nonresponsive.
3/ The memo from the Final Selection Committee was not in evidence. Its existence is evidenced by a reference to it in a memorandum from Respondent dated August 31, 1989. The memorandum dated August 31, 1989, was part of the joint exhibits admitted in evidence.
4/ Neither the record nor the Joint Stipulation of Facts disclosed the date of approval of the contract by the Governor's office.
5/ Mr. James L. Ely was the Director of Florida's Turnpike, a member of the Final Selection Committee, and a signatory of the memorandum issued on August 31, 1989, directing the Contracts Administration Office to reject all price proposals. Mr. Sly testified that the reduction in the scope of services was the basic reason for rejecting all price proposals. Compare TR at 49 and 112 with TR at 115 and 116.
6/ This finding is a finding regarding the stipulation by the parties. It is not a finding that Respondent's rejection of all price proposals either was or was not arbitrary, capricious, or beyond the scope of Respondent's discretion as a state agency. Such a finding has been made irrelevant pursuant to the parties' stipulation at the formal hearing. See TR at 55 and Petitioner and Intervenor's Findings of Fact, Conclusions of Law and Recommended Order at 11. The Amendment to Request for Administrative Hearing filed on May 2, 1990, amended the "Wherefore" clause by limiting the request to an order requiring Respondent to pay Petitioner for its technical and price proposal.
7/ The proposed changes were published in the Florida Administrative Weekly on March 16, 1990. Petitioner's Request for Administrative Hearing was filed on September 25, 1989. The matter was referred to the Division of Administrative Hearings on December 13, 1989.
8/ The project was referred to as the "Ochlocknee Bay bridge project."
9/ See discussion at n. 18 infra.
10/ The record did not disclose whether Respondent intends to "relet" the project in the form of an invitation to bid or a request for proposals. See TR at 112.
11/ References to chapters, sections, and subsections are to Florida Statutes (1989) unless otherwise provided.
12/ See Webb v. Hillsborough County (Fla. 1935)(holding that recovery may be had on a quantum meruit basis for the value of labor and materials furnished by a contractor when a county has enjoyed the benefits of the performance of a contract for road improvements).
13/ See also Florida Department of Health and Rehabilitative Services v. Career Service Commission, 289 So.2d 412 (Fla. 4th DCA 1974); State Department of Agriculture and Consumer Services v. Strickland, 262 So.2d 893 (Fla. 1st DCA 1972).
14/ The operative language in Sec. 120.56(5),1Fla. Stat., formerly appeared in Sec. 120.56(4)(d), Fla. Stat. (1977).
15/ Procedural differences exist within the administrative remedies available in Secs. 120.54, 120.56, and 120 .57(1), Fla. Stat., including the expedited nature of the proceedings and the effect of the hearing officer's order.
Compare Secs. 120.57(1)(b)2., 120.57(1)(b)3., 120.56(2)-(4), 120.54(4)(d) and
120.56(5). While Sec. 120.57(1) contains no notice requirements like those in Secs. 120.54(4)(c) and 120.56(3), all rules and final orders are filed in accordance with a subject matter index and made available for inspection and copying by the public. Sec. 120.53(2); McDonald, 346 So.2d at 582. The hearing officer's order under Secs. 120.54(1)(a) or 120.56(1) is final agency action while the hearing officer's order under Sec. 120.57(1) merely recommends final agency action. If a final order under Secs. 120.54 or 120.56 determines a rule to be invalid, the final order is binding on the agency for all purposes. If a recommended order determining a rule to be invalid is adopted in the agency's final order, the final order is binding on the agency only for the purpose of that proceeding. If an agency has authority to refuse to apply a rule in conflict with a statute on a de facto basis, the agency has authority to refuse to apply such a rule on a de jure basis in its final order. One who seeks to invalidate agency action taken to effectuate an invalid rule does not relinquish the substantive right to a determination of the invalidity of the rule merely by following the procedures available under Sec. 120.57(1) rather than the procedures available under Secs. 120.54 120.56.
16/ An invalid rule in conflict with a statute may be a written rule in conflict with a substantive statutory provision, or it may be unwritten agency policy of general applicability in conflict with statutory procedures for rulemaking in Sec. 120.54, Fl.. Stat., i.e., an "incipient rule." In either event, the incentive for rulemaking in Chapter 120 is the invalidation of agency action taken to effectuate rules in conflict with statutes. Cf. McDonald, 346 So.2d at 580. Prior to 1984, "other incentives" for rulemaking were judicially recognized in the practical requirement for an agency to repeatedly explain its unwritten policy in administrative hearings. Barker v. Board of Medical Examiners, 428 So.2d 720, 722 (Fla. 1st DCA 1983); Department of Highway Safety and Motor Vehicles v.' Florida Police Benevolent Association, 400 So.2d 1302, 1304 (Fla. 1st DCA 1981). Judicial recognition of these "other incentives" was rejected by the legislature in 1984 to the extent such "other incentives"
required explanations of agency action that was inconsistent with a valid written rule. The statutory language in Sea. 120.68(12)(b), Fla. Stat. (1983), that had allowed such explanations by an agency was repealed in 1984. There was never any statutory authority allowing explanations of agency action to effectuate an incipient rule. To the extent judicially recognized "other incentives" required an explanation of agency action to effectuate an incipient rule unrelated to a valid written rule, such cases conflict with the rulemaking procedures legislately mandated in Sec. 120.54, as well as substantial judicial authority holding that compliance with Sec 120.54 is a necessary predicate to the validity of agency action taken to effectuate an unwritten policy of general applicability. See cases cited in para. 31 and n. 22 infra. Statutory incentives for rulemaking in Secs. 120.54(1) and 120.68(12)(b) could be effectively circumvented if agency action taken to effectuate an incipient rule is re-characterized as nonrule policy and the agency is then permitted to expose and elucidate the reasons for its action in each case brought pursuant to Sec.
120.57(1). Such a re-characterization is not a jurisdictional prerequisite to determine the invalidity of an incipient rule in a Sec. 120.57(1) proceeding. If an incipient rule deviates from a valid written rule, re-characterizing an incipient rule as nonrule policy would judicially resurrect the 1983 provisions in Sec. 120.68(12)(b) that had allowed an agency to explain deviations from valid written rules. If an incipient rule is unrelated to a valid written rule but fails to comply with Sec. 120.54, re-characterizing the incipient rule as nonrule policy (or invalidating the incipient rule) and allowing the agency to explain and elucidate an unwritten policy of general applicability would also circumvent the rulemaking requirements in Sec. 120.54, as well as the judicial authority referenced herein.
17/ The statutory framework that limits Respondent's power to enter into contracts is not easily tracked. Respondent must enter into contracts in accordance with the competitive bidding requirements prescribed in CHs. 287 and 337, Fla. Stat. Secs. 337.02(1) and 287.055(10). Secs. 287.055(3)-(5) require a contract for professional services to be entered into on a competitive basis. Sec. 337.11(5) controls competitive procedures for a request for proposals except as provided otherwise in Sec. 287.055(10). For all other purposes, CH.
287 controls competitive procedures applicable to Respondent except as provided in CH. 337. Secs. 287.055 (3)-(4) apply to CH. 337 unless otherwise provided in CH. 337. Secs. 287.042(4), (5), 287.055(10), and 337.02(1).
18/ This is not a proceeding in which an agency interpreted or applied an existing rule in a way that was consistent with statutory law. Respondent correctly interpreted Rule 14-91.006(5) as being in conflict with applicable statutes and refused to apply such a rule. If Respondent had determined in the exercise of its discretion that Rule 14-91.006(5) was valid but inapplicable in the absence of a contract (or interpreted Rule 14-91.006(5) as prohibiting the payment of funds in the absence of a contract) so that its rule was consistent with applicable statutes, Respondent would have taken discretionary action inconsistent with the plain and ordinary meaning of the terms of its existing "valid" rule in violation of Sec. 120.68(12)(b), Fla. Stat.
19/ Rule 14-91.006(5) gave Respondent the option to determine whether it would be in the best interest of the state to provide firms with funds for their technical and price proposals. Whether Respondent refused to exercise its option to make the determination authorized in Rule 14--91.006(5) or exercised its option and undertook the determination, Respondent would have exercised agency discretion within the meaning of Sec. 120.68(12), Fla. Stat. The exercise of Respondent's discretion pursuant to Rule 14-91.006(5) was not subject to Respondent's unrestrained caprice. It was limited by standards
implied by the purposes of the enabling legislation, due process, and reason. D'Alemberte v. Anderson, 349 So.2d 164 (Fla. 1977); Robbins v. Webb's Cut Rate Drug Co., 16 So.2d 121 (Fla. 1944). It is presumed that a state agency will exercise its discretion in an honest and good faith manner. Liberty County v. Baxter's Asphalt and Concrete, Inc., 421 So.2d 366 (Fla. 1982); Culpepper v.
Moore, 40 So.2d 366 (Fla. 1949). Rule 14-91.006(5) was a procedural rule mandated by Sec. 337.11(5)(b). It was adopted to implement Sec. 337.11(5). Sec. 337.11(5)(a) prescribes standards for determining the best interest of the public. Those standards include time savings, cost reduction, adequate availability, experience to be gained, and use of state of the arts methods.
Respondent adopted Rule 14-91.006(5) to encourage competitive responses to a request for proposals and to enable Respondent to retain technical proposals and use the design concepts on similar projects. If Respondent had applied Rule 14- 91.006(5) in accordance with standards prescribed in the enabling legislation, due process, and reason, Respondent would have exercised its option to make the determination authorized in Rule 14-91.006(5). Such a determination would have concluded that it was in the best interest of the state to provide funds to Petitioner and Intervenor. See Findings of Fact at para. 29-36 supra.
20/ In Kirksy, 811 F.2d 561, the court held that even though action taken by an Alabama school board in dismissing an instructor was unavoidable, the school board could not take such action in a manner that denied its employee due process.
21/ See, Baptist Hospital, Inc., 500 So.2d at 625; Turro, 458 So.2d at 346.
22/ See, York, 10 So.2d at 815; Gulfstream Park Racing Association, Inc., 407 So.2d at 265; Sexton Cove Estates, Inc., 325 So.2d 468; City of Margate, 546 So.2d at 1094 (discussed at Conclusions of Law, para. 10).
23/ A determination of whether agency action is a rule or an order is appropriate in an administrative proceeding. In Central Corporation, 551 So.2d at 571, the court determined that a directive issued in the form of an order was, in effect, an invalid rule that had not been promulgated through formal rulemaking procedures. In his dissenting opinion, Judge Ervin characterized the majority opinion as a "bright signal" that the exercise of classifying agency action as either a rule or an order "...remains not only alive but exceedingly well...". Compare Department of Corrections v. Piccirillo, 474 So.2d 1199, 1202 (Fla. 1st DCA 1985); Department of Corrections v. Holland, 469 So.2d 166, 167 (Fla. 1st DCA 1985) ; Department of Corrections v. Adams, 458 So.2d 355, 356-357 (Fla. 1st DCA 1984); Balsam, 452 So.2d 976; Department of Revenue v. U.S. Sugar Corporation, 388 So.2d 596, 598 (Fla. 1st DC- 1980)(for cases in which courts
re-characterized as invalid rules agency action that was cast in another form); with Barker v. Board of Medical Examiners, 428 So.2d at 722 (for a pre-1984 case holding that attempts to label agency action as either a rule or nonrule policy have been largely discarded). Other cases have upheld agency action which did not satisfy the definition of a rule. See, e.g., Friends of the Everglades, Inc., 495 S02d at 1194 n. 2; C.H. Barco Contracting Co. v. State, Department Of Transportation, 483 So.2d 796 (Fla. 1st DCA 1986); White Advertising International v. State, Department of Transportation, 368 So.2d 411 (Fla. 1st DCA 1979).
24/ Respondent's action did not fall within any exception to the statutory definition of a rule. The directive uttered by Respondent's general counsel prior to Respondent's action to effectuate such a directive qualified as an agency legal opinion issued prior to its use in connection with agency action within the meaning of Section 120.52(16)(b). As such, it was exempt from the
definition of a rule. Once Respondent took action to effectuate its agency legal opinion and refused to apply its published rule, the directive lost its exempt status. The directive from Respondent's comptroller never qualified as a legal opinion.
25/ Whenever the refusal to apply an invalid written rule is undertaken to effectuate an incipient rule, it may be argued that such action necessarily involves the exercise of agency discretion. In McDonald, the court stated that CH. 120, Fla. Stat:
mpels agencies to 'confine their-own discretion' by 'moving from 'vague standards to definite standards to broad principles to rules.' (citations omitted)
McDonald, 346 So.2d at 580.
Since Respondent's decision not to apply its existing rule on a de facto basis involved the exercise of discretion, the disposition of this proceeding does not require a determination of whether action taken to effectuate an necessarily involves the exercise of discretion in all cases.
26/ The stay of an existing rule through a moratorium adopted in accordance with the rulemaking procedures in Sec. 120.54 presumably is a proper exercise of agency discretion. In Balsam, 452 So.2d at 46-47, the court held that a moratorium on enforcement of an existing rule was an incipient rule and was invalid. Presumably, the outcome would have been different if the moratorium had been adopted in accordance with the rulemaking procedures in Sec. 120.54, Fla. Stat.
27/ Since invalidation of agency action taken to effectuate an incipient rule is the necessary result' under CH. 120, Fla. Stat., Petitioner and Intervenor are entitled under CH. 120 to a determination of the invalidity of action taken by Respondent to effectuate its unwritten policy of general applicability. Even though Respondent's action was a discretionary act undertaken to effectuate an incipient rule in violation of Sec. 120.54, it was not an act of discretion that deviated from an existing rule in violation of Sec. 120.68(12)(b) because Rule 14-91.006(5) was not a valid existing rule.
28/ An agency cannot lawfully repeal an existing ruled simply by refusing to apply it, even though there is no difference in practical effect between the two actions. In McDonald, 346 So.2d at 581, the court held that rulemaking procedures in Sec. 120.54, Fla. Stat., are imposed on agency policy of general applicability. The rulemaking procedures in Sec. 120.54 apply to agency policy of general, applicability whether such policy involves the decision not to apply an existing rule on a de facto basis or goes further and involves other unwritten agency policy of general applicability related to an existing rule.
If Respondent had adopted an unwritten policy of general applicability to retain all technical and price proposals and claimed the exception to competitive procedures in Sec. 287.055(11), such policy would violate the rulemaking procedures in Sec. 120.54 irrespective of the invalidity of the existing rule. (The evidence was insufficient to determine whether Respondent's actual unwritten policy of returning all technical and price proposals to unsuccessful offerors satisfied the test of general applicability.) CH. 120 imposes no express affirmative duty for an agency to repeal an invalid rule. One of the principle purposes of Chapter 120, however, is to close the gap between what the agency knows and what an outsider knows about the agency's law and policy.
McDonald, 346 So.2d at 580. When an existing rule is in conflict with a statute and is invalid by operation of law, rather than having been declared invalid in
a final order entered pursuant to Sec. 120.56, repeal in accordance with rulemaking requirements in Sec. 120.54 closes the gap between what the agency knows and what an outsider knows about the agency's law and policy. The repeal of Rule 14-91.006(5) pursuant to Sec. 120.54 when Respondent first learned of the rule's invalidity rather than approximately two years later may have given notice to outsiders of Respondent's de facto refusal to apply an invalid written rule and may have avoided this proceeding.
29/ Head v. Lane, 495 So.2d 821 (Fla. 4th DCA 1986); Hallam v. Gladman, 132 So.2d 198 (Fla. 2d DCA 1961); United Service Corporation v. Vi-An Construction Corp., 77 So.2d 800 (Fla. 1955).
30/ J.S. Michael Company v. Rayonier Incorporated, 212 So.2d 824 (Fla. 1st DCA 1968).
31/ Contra Greenhut Construction Company v. Knott, 247 So.2d 517.
32/ A determination of whether Respondent had superior knowledge within the meaning of the doctrine of estoppel would depend on whether the repeal of Rule 14-91.606(5) could be considered in making such a determination or whether consideration could be given only to the facts as they existed at the time Petitioner and Intervenor responded to the RFP. Based upon the latter set of facts, it would appear that Respondent failed to close the gap between what Respondent knew about its law and policy and what Petitioner and Intervenor knew about such law and policy.
APPENDIX
Petitioner and Intervenor submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. No notation is made for unnumbered paragraphs.
Proposed Findings of Fact of Petitioner and Intervenor
Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection
1-2 Rejected as irrelevant and immaterial (These matters
are not in issue. See Find-. ings of Fact, para. 15 and note 6, page 8, supra.)
3-4 Accepted in findings 20-22
Rejected as a conclusion law.
Accepted in part in finding 18
Accepted in part in findings 16-19
Rejected as a conclusion of law
and 11-14 Accepted in findings 29-35
Rejected as a conclusion of law
Respondent has submitted proposed findings of fact. It has been noted below which proposed findings of fact have been
generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and. the reason for their rejection have also been noted.
The Respondent's Proposed Findings of Fact
Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection
Accepted in finding 1
Rejected as immaterial and irrelevant
Accepted in finding 3
4-5 Accepted in finding 4-6
6-7 Rejected as irrelevant and immaterial (See Findings of Fact, para. 3, pg. 4, supra.)
Accepted in finding 13
Accepted in finding 7
Accepted in finding 8
11-13 Accepted in part in finding 13 (See note 5 in finding 13)
Accepted in finding 12
Rejected for the reasons stated in findings 23-28
Accepted in finding 37
Rejected as irrelevant and immaterial
Accepted in finding 25
Accepted in finding 23
20-21 Accepted in finding 24
Accepted in findings 23-28
Accepted in finding 24
Accepted in finding 36
Accepted in part in finding 37
COPIES FURNISHED:
Ben G. Watts, Secretary
Attention: Eleanor F. Turner, M.D. 58 Department of Transportation
Haydon Burns Building 605 Suwannee Street
Tallahassee, Florida 32399-0458
Stephen Tabano, Esquire Turnpike Counsel
Department of Transportation 1211 Governor's Square Blvd. Tallahassee, Florida 32301
John H. Beck, Esquire
Lindsey, Williams & Beck, P.A. 1026 East Park Avenue Tallahassee, Florida 32301
J. Ted Barefield, Manager Contracts Administration Office
Florida Department of Transportation 605 Suwannee Street
Tallahassee, Florida 32399-0450
W. Crit Smith, Esquire
1530 Metropolitan Boulevard
Tallahassee, Florida 32308
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION
STATE PAVING CORPORATION,
Petitioner, and THE CONE CORPORATION,
Intervenor, Case No. 89-6871BID
vs.
FLORIDA DEPARTMENT OF TRANSPORTATION,
Respondent.
/
FINAL ORDER
Pursuant to notice this matter came to be heard on May 10, 1990, in Tallahassee, Florida, before Daniel Manry, a duly designated hearing officer of the Division of Administrative Hearings. This order is entered by the Secretary of the Florida Department of Transportation, pursuant to section 120.59, Florida Statutes, following a review of the complete record and recommended order entered in this cause by the hearing officer.
The Petitioner in this matter is State Paving Corporation (hereinafter State Paving). Respondent is the Florida Department of Transportation (hereinafter Department), and Intervenor on the side of Petitioner is the Cone Corporation (hereinafter Cone).
The parties were represented at the hearing as follows:
Petitioner: John H. Beck, Attorney 1026 East Park Avenue Tallahassee, Florida 32301
Intervenor: W. Crit Smith, Attorney Smith & Thompson
1530 Metropolitan Boulevard
Tallahassee, Florida 32308
Respondent: Stephen Tabano, Turnpike Counsel
Judy Rice, Turnpike Counsel Department of Transportation 1211 Governor's Square Boulevard Suite 100
Tallahassee, Florida 32301
The Department herein adopts the Findings of Fact made by the hearing officer as stated in his Recommended Order issued January 10, 1991, except as specifically noted below. It is further noted that the hearing officer's recommended Conclusions of Law and Recommendation are adopted as if fully set out herein. References to the transcript of this proceeding are herein noted as (Tr. p.
It is noted at the outset that the Department rejects that portion of the Preliminary Statement which states, "The parties expressly waived the statutory requirement for a recommended order within 30 days of the date of the formal hearing." Counsel for the Department expressly objected to Petitioner's Motion to Extend Time and informed the hearing officer that the Department would not waive the time constraints in a bid protest (Tr. p. 124, 1. 14-24).
FINDINGS OF FACT
The Hearing Officer's factual findings Nos. 1-28 are adopted herein by the Department.
29. The hearing officer's factual finding No. 29 is rejected as not being based upon competent substantial evidence in that there is nothing in the record to support the finding that payment of funds to Petitioner and Intervenor would have been in the best interest of the state within the meaning of Rule 14- 91.006(5); there is no evidence in the record that the Department has currently derived a benefit from the submitted proposals; nor is there evidence in the record to show the fair market value of the actual submitted proposals.
The hearing officer's acceptance of Petitioner's Proposed Findings of Facts
9 and 11-14 is encompassed in the Recommended Factual Finding Nos. 29-35. (See Appendix, pg. 46 of the Recommended Order) Pages 51-52 of the transcript are cited as support for that Finding.
Witness Ely was asked, "And in your discussion did you make a determination of when it would be in the State's best interests to pay --". (Tr. p. 51, 1. 5-
6) Mr. Ely's reply was, "No, we did not." (Tr. p. 51, 1. 7)
Mr. Ely further testified that he had discussed with other Department employees the merits of paying State Paving, but did not discuss the merits of paying Cone Corporation or "when it would be in the best interests of the State
of Florida" to pay State Paving. He also testified that he had discussed the legality of making such payment (Tr. p. 51, 1. 1-4). There was no decision by the Department that it was in the best interests of the Department to pay State Paving and no criteria was developed upon which such a decision should be made. (Tr. p. 51, 1. 5-10) (Tr. 52, 1. 6-14) Mr. Ely was asked what his opinion was as to what such criteria should be (Tr. p. 51, 1. 4-13) and he testified as to his opinion (Tr. p. 51, 1. 14-19 and Tr. p. 52, 1. 1-5). However no, criteria was developed by the Department nor was any articulated by the hearing officer and found to exist based on record testimony.
There is no evidence in the record that the Department has derived substantial benefit from the technical and price proposals submitted by Petitioner and Intervenor including a reduction in the cost of State Project Nos. 97890-3325 and 97930-3324. The Petitioner's Proposed Recommended Finding Accepted by the Hearing Officer cites to pp. 66 and 71 and pp. 119-121 of the transcript that "the documents prepared by the contractors would be of value to the State on concluding the project, at its reduced scope, and putting the job out for bids." (emphasis added) The benefit therein described is prospective in nature and has not enured to the Department's benefit at this time.
Any reduction in the scope of the project resulted from the fact that the Lake Worth Drainage District had "changed [its] mind" to not require bridges and to permit the use of pipe culverts on the project. (Tr. p. 34, 1. 4-23; p. 111,
1; p. 112, 1. 6; p. 116, 1. 9-15) While information contained in the Cone proposal prompted the Department to recheck the Lake Worth Drainage District's requirements, the potential change in project scope relates directly to the Drainage District's changed position and not to actions of either Petitioner or Intervenor. There is in fact only testimony which demonstrates that the Department did not use Petitioner's or Intervenor's proposals to alter the project scope (Tr. p. 118, 1. 22; p. 119, 1. 13; p. 119, 1. 25; p. 121, 1.
8). Further the Petitioner and Intervenor submitted proposals and it is the Department's practice to return or destroy submitted proposals at the option of each bidder (Tr. p. 113, 1. 24; p. 114, 1. 1-23). The record only states that if the Department retained the technical proposals would they have value to the Department (emphasis added). (Tr. p. 118, 1. 7-17; p. 62, 1. 19; p. 63, 1.
8)
The record contains no testimony as to what was the fair market value of the actual proposals submitted by Petitioner and intervenor. The only testimony received was specifically offered to show what the Department normally pays a private consultant to do design engineering. (Tr. p. 64, 1. 11-19)
Therefore the Hearing Officer's finding that the fair market value of the actual proposals submitted by Petitioner and Intervenor is not supported by the record herein.
Although nothing in the Hearing Officer's Recommended Order indicated any specific finding that the Department acted arbitrarily in this matter the Hearing Officer, however, did accept Petitioner's Proposed Finding of Fact 9 which states:
".. .by failing to consider the criteria set-forth in Rule 14-91.006(5) even after numerous requests to do so that
Respondent acted in an arbitrary manner." To the extent the Hearing Officer's findings 29-35 may be interpreted to incorporate a finding of arbitrariness on the part of the Department, such finding is specifically
rejected as having no basis in the record. The Hearing Officer's conclusion that the Department does not have legal authority to make payments to Petitioner or Intervenor pursuant to former Florida Administrative
Code Rule 14-91.D06(5) directly supports the conclusion that the Department in fact did not act arbitrarily.
Findings of Fact 30-33 are herein adopted.
The hearing officer's finding of fact No. 34 is rejected as not being based upon competent substantial evidence. See discussion of Finding of Fact
29 infra. All testimony received indicated that the Department prospectively could derive a benefit from the proposals if the Department retained Petitioner's or Intervenor's technical and price proposals and used those proposals. However, the testimony cited in 29 above specifically indicated that the Department did not intend to retain or use either proposal and no testimony directly supports a finding that a benefit has been received by the Department from the submitted proposals.
The hearing officer's finding of fact No. 35 is rejected as not being based upon competent substantial evidence insofar as it recommends a finding that the Department derived a benefit from the technical proposals prepared by Petitioner and Intervenor with respect to the projects contemplated in the RFP and similar projects in the future. See discussion relating to benefits from the submitted technical and price proposals in 29 and 34 above. The record contains testimony that these proposals could only be useful to the specific sites contained in the advertised jobs. (Tr. p. 62, 1. 24; p. 63, 1. 2; p. 118,
7-16) The Department adopts the portion of this finding which states, "Respondent can 'relet' the project in the future and intends to do so."
Findings of Fact 36 and 37 are adopted herein by the Department.
CONCLUSIONS OF LAW
The Recommended Conclusions of Law made by the hearing officer are fully adopted herein.
Wherefore, upon consideration of the foregoing Findings of Fact and Conclusions of Law reached it is
ORDERED that:
Petitioner, State Paving Corporation's written formal protest is DENIED;
Intervenor Cone Corporation's Petition to for payment for work done in connection with its submitted technical and price proposals prepared in conjunction with State Project Nos. 97890- 3325 and 97930-3324 is also DENIED;
The Department of Transportation shall return the respective technical and price proposals to Petitioner and Intervenor upon this matter becoming final and the time for pursuing an appeal has expired. In the event any party perfects an appeal, the Department shall return the proposals after the appellate process is concluded.
The Department of Transportation shall not provide funds to either Petitioner of Intervenor pursuant to former Florida Administrative Code Rule 14- 91.006(5).
DONE AND ORDERED this 10th day of April, 1991.
BEN G. WATTS, P.E.
Secretary
Florida Department of Transportation Haydon Burns Building
605 Suwannee Street
Tallahassee, Florida 32399
RIGHT TO APPEAL
This Order constitutes final agency action and may be appealed by Petitioner pursuant to section 120.68, Florida Statutes, and Rule 9.110, Florida Rules of Appellate Procedure, by filing a Notice of Appeal conforming to the requirements of Rule 9.110(d), Florida Rules of Appellate Procedure, both with the appropriate district court of appeal, accompanied by the appropriate filing fee, and with the Department's Clerk of Agency proceedings, Haydon Burns Building, 605 Suwannee Street, M.S. 58, Tallahassee, Florida 32399-0458, within thirty
(30) days of rendition of this Order.
Copies furnished to:
Daniel Manry Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
John H. Beck, Attorney 1026 East Park Avenue
Tallahassee, Florida 32301
W. Crit Smith, Attorney Smith & Thompson
1530 Metropolitan Boulevard
Tallahassee, Florida 32308
Stephen Tabano, Turnpike counsel Judy Rice, Turnpike counsel Department of Transportation
1211 Governor'S Square Boulevard, Suite 100
Tallahassee, Florida 32301
J. Ted Barefield, Manager Contract Administration Office Department of Transportation 605 Suwannee Street, M.S. 55
Tallahassee, Florida 32399-0455
| Issue Date | Proceedings |
|---|---|
| Jan. 10, 1991 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Apr. 10, 1991 | Agency Final Order | |
| Jan. 10, 1991 | Recommended Order | DOT should reject all Request For Propsals. DOT may not refuse to apply its own valid written rule. Refusal is invalid unwritten rule which can be challenged in 120.57 hearing without 120.56 |
