STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

)

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 June 11, 1990, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Walter R. Shaw

Allied Mowing Service

1400 Northwest 62nd Avenue Sunrise, Florida 33313

For Respondent: Susan P. Stephens

Senior Attorney

Department of Transportation

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399 STATEMENT OF THE ISSUES

The ultimate issues for determination at the formal hearing were whether Petitioner's notice of protest was timely filed, and if so, whether Respondent's solicitations for bids for State Project Nos. 86906-9093, 86906-9094, and 86906- 9085, were arbitrary, capricious, or beyond the scope of Respondent's discretion as a state agency.

PRELIMINARY STATEMENT

By letter dated May 9, 1990, Petitioner filed its Notice of Protest of the invitations to bid on the state projects at issue in this proceeding.

Petitioner filed its Amended Protest by letter dated June 4, 1990.

The matter was referred to the Division of Administrative Hearings ("DOAH") for assignment of a hearing officer by letter dated May 25, 1990, assigned to the undersigned on May 29, 1990, and set for formal hearing on June 8, 1990, in Tallahassee, Florida, pursuant to the Notice of Hearing issued on May 30, 1990. An Order Granting Continuance and Change of Venue was entered on June 5, 1990,

upon Petitioner's Motion for Change of Venue to Fort Lauderdale, Florida, and upon Respondent's uncontested, ore tenus motion for continuance of the formal hearing until June 11, 1990.

A hearing was conducted by telephone conference on June 7, 1990, concerning Respondent's Motion to Dismiss filed on June 5, 1990. Ruling was reserved on the Motion to Dismiss for disposition in this Recommended Order.

During the telephone conference, Petitioner made an ore tenus motion to continue the formal hearing beyond June 11, 1990, on the grounds that additional time was required for Petitioner to obtain counsel and prepare for the formal hearing. Respondent objected to any continuance beyond June 11, 1990, on the ground that such a continuance would violate the provisions of Subsection 120.53(5)(e), Florida Statutes, 1/ and on the ground that Respondent would be prejudiced by any delay. Petitioner's ore tenus motion for a continuance of the formal hearing beyond June 11, 1990, was denied.

The Pre-Hearing Stipulations required by the Prehearing Order entered on May 30, 1990, were timely filed by the parties on June 8, 1990. The parties otherwise complied with the terms of the Prehearing Order. Respondent filed a Motion for Discovery on June 6, 1990.

At the formal hearing, Petitioner filed with the undersigned a Motion for Preclusive Order requesting that Respondent be precluded from presenting any evidence pertaining to matters included in Petitioner's Motion for Discovery and paragraph 6(a)-(k) of the Prehearing Order. 2/ Ruling on the Motion for Preclusive Order was reserved for disposition in this Recommended Order.

Petitioner made a standing, ore tenus motion to continue the formal hearing on the ground that Petitioner needed additional time to obtain counsel and prepare for the formal hearing in this proceeding. Petitioner's standing motion to continue was denied. Petitioner has substantial experience in bid protest proceedings, is aware of the expedited nature of such proceedings, and should have began its preparation for the formal hearing as soon as the bid protest was filed.

Petitioner testified in his own behalf, presented the testimony of three witnesses, and offered nine exhibits for admission in evidence. Respondent presented the testimony of two witnesses for admission in evidence.

Petitioner's exhibits were admitted without objection. The invitations to bid on the three state projects at issue in this proceeding were admitted as a composite joint exhibit.

A transcript of the formal hearing was ordered and filed with the undersigned on June 19, 1990. Both parties requested 20 days from the date the transcript was filed with the undersigned to submit proposed findings of fact and conclusions of law; thereby waiving the requirement for a recommended order within 30 days of such date. Proposed findings of fact and conclusions of law were timely filed by Petitioner on June 28, 1990, and by Respondent on July 5, 1990. The parties' findings of fact are addressed in the Appendix to this Recommended Order.

The dearth of competent and substantial evidence presented at the formal hearing by either party that was relevant and material to either the factual allegations in the protest or the Motion to Dismiss had the effect of minimizing the number of findings of fact in this Recommended Order. Petitioner's case in chief consisted of his own testimony, the invitations to bid, and six pictures

of the roadside areas involved in the three state projects at issue in this proceeding. Much of Petitioner's testimony addressed allegations not contained in the written protest. Respondent presented little or no evidence controverting Petitioner's testimony concerning the alleged inadequacies in the invitations to bid other than the invitations themselves. Respondent also failed to present any evidence supporting the factual allegations in its Motion to Dismiss.

FINDINGS OF FACT

1. The invitation to bid on state Project Nos. 86906-9093, 86906-9094, and 86906-9085 (the "ITB") contained, among other things, 43 pages of Technical Specifications Roadside and Slope Mowing ("Technical Specifications").

   Paragraph VI.A. of the Technical Specifications contained the following provision:

   
   

   When mowing areas within ten feet of the travel way, the equipment shall be operated in the direction of the traffic. This provision does not apply when the specific worksite (sic) is protected in accordance with the Florida Department of Transportation Roadway and Traffic Design standards [attached]. 3/

   
   

2. Respondent amended the ITB by letter dated May 1, 1990, which contained Addendum Nos. 1 and 2. Addendum No. 1 amended the invitations to bid on State Project Nos. 86906-9093 and 86906-9094 by deleting the "last" word "attached" from Paragraph VI.A. Addendum No. 2 amended the invitations to bid on State Project No. 86906-9085 by deleting the "last" word "attached" from Paragraph

   VI.A. No other changes were made in the amendments to the invitations to bid on the three state projects at issue in this proceeding ("Amended ITB").

   
   

3. The ITB contained a requirement that all bidders attend a Mandatory Pre-Bid Conference to allow bidders an opportunity to speak to Respondent's maintenance engineers about any concerns over the ITB. Petitioner attended the Mandatory Pre-Bid Conference conducted on April 26, 1990, for the ITB. 4/

   
   

4. The ITB and the Amended ITB contained a requirement that each bidder visually inspect the roadside areas to be mowed. Petitioner knew of the requirement for visual inspection and complied with that requirement. Petitioner had previous experience in mowing roadside areas for Respondent.

   
   

5. The Florida Department of Transportation Roadway and Traffic Design standards ("Standards Index") was not attached to either the ITB or the Amended ITB. Paragraph 9 of the General District Contract Specifications provided that the successful bidder "...shall adhere to the requirements of Part VI of the Manual on Uniform Traffic Control Devices ("MUTCD")." Neither the ITB nor the Amended ITB included a copy of either the MUTCD or Part VI of the MUTCD.

   
   

6. Petitioner received the ITB on April 12, 1990, and requested a copy of the Standards Index at that time from Teresa Martin, Assistant District Contracts Administrator, District Four, Florida Department of Transportation. Ms. Martin advised Petitioner on April 12, 1990, that no copies of the Standards Index were available locally and further advised Petitioner of the location and means for obtaining a copy of the Standards Index in Tallahassee, Florida. Petitioner made no attempt to obtain a copy of the Standards Index at that time.

   Petitioner again requested a copy of the Standards Index from Ms. Martin on May 2, 1990, and was advised again at that time of the location and means of obtaining a copy of the Standards Index.

   
   

7. The bid package did not fail to contain any "plan" referred to in: Section 4, Scope of Work, paragraphs 4.1 and 4.2; Section 5, Control of the Work, paragraph 5.2; Section 12, Work Assignment and Planning for Routine Contract Maintenance, paragraphs 2 and 4-6, page 5, paragraph 1.2, page 20, Section II D., III A., page 24, Section IX, and page 64, Proposal. Petitioner presented no evidence or authority describing the applicable standard for defining a "plan".

   
   

8. The ITB and Amended ITB contain a description of which roadsides are to be mowed, the manner in which the work should be performed, each pay item and the quantity estimated for each item, the estimated number of mowing cycles, and numerous other detailed provisions regarding mowing operations, operator safety, equipment maintenance, and conversion charts. While the ITB and Amended ITB are standard forms of contract issued by the Department of General Services, they are tailored to meet the specific needs of a mowing contract by means of the Technical Specifications. In the absence of evidence or authority to the contrary from Petitioner, the ITB and Amended ITB are found to include all relevant plans.

   
   

9. Respondent failed to include either the "form of Contract" or "Bond" referred to in pages 1, 10, and 64 of the ITB and Amended ITB. Page 64 contained a form of bid proposal which required each bidder to sign a statement that the bidder had "...carefully and to [its] satisfaction examined the...form of Contract and Bond..

   
   

10. The ITB and Amended ITB did not fail to state standards for what is "customary to the mowing operation". The ITB and Amended ITB were prepared on a standard form of contract issued by the Department of General Services and used by Respondent to solicit bids for various types of commodities and services.

    The ITB and Amended ITB were used to solicit mowing services for specified roadside areas In Broward County, Florida. They were composed of general specifications, bidding documents, technical specifications, and mowing guidelines. The term "custom" by definition refers to the prevailing practice that has been established over time within a geographical area rather than the written terms of a contract. 5/

    
    

11. The definition of grass or vegetated roadside areas to be mowed, which is set forth in Section I, Description A, page 19, excludes certain plants and vines which are present in the areas to be mowed. 6/ Such a definition does not take into account the different toughness and clumping characteristics of each type of grass or weed within the mowing area. Differences in toughness and clumping characteristics of grasses and weeds can adversely alter the uniformity of cutting height.

    
    

12. The Technical specifications neither define the term "routine mowing", as used in Sections II.D. and III.A., nor prescribe how high grass or weeds should be allowed to grow before Respondent issues a work order or a notice to proceed. Grass, weeds, plants, and vines in a roadside area that are left for several months without a work order being issued can grow to a height of 10 feet, develop very hard stems, or lay down during mowing and later rebound. The Technical Specifications do not contain a definition of minimum mower size. The frequency with which Respondent issues work orders or notices to proceed depends on growth conditions in the particular roadside area including rain and drought.

13. The topography of the roadside areas to be mowed includes holes, boulders, and un-repaired washouts. The topographical characteristics of the roadside areas and the toughness and clumping characteristics of the grasses and weeds in the roadside areas adversely affect the ability of a successful bidder to comply with cutting height and green streak requirements in the Technical Specifications. 7/

    
    

14. The ITB and Amended ITB were neither arbitrary, capricious, nor beyond Respondent's discretion. The terms of the ITB and Amended ITB were not inherently uncertain or unreasonable. No evidence was presented that Respondent abused its discretion in soliciting the bids, that the accepted bid, if any, was not a reasonable price for the work solicited, that the law was not complied with, or that the contract to be awarded was not fair and capable of just and lawful enforcement.

    
    

15. The ITB and Amended ITB were sufficiently precise to protect the public against collusive contracts, prevent favoritism toward contractors, and secure fair competition upon equal terms to all bidders. The ITB and Amended ITB afforded a basis for an exact comparison of bids among all bidders and did not reserve to an officer of the public body the power to make exceptions, releases, and modifications that would afford opportunities for favoritism after the contract is let.

    
    

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this proceeding. Section 120.57(1), Florida Statutes. The parties were duly noticed for the formal hearing.

    
    

17. Respondent's Motion to Dismiss is denied. A review of the operative pleadings in this proceeding suggests an apparent basis for granting the Motion to Dismiss. However, no evidence was presented by Respondent to support the factual allegations in its Motion to Dismiss.

    
    

18. Petitioner's Motion for Preclusive Order is denied.

    
    

    1. Paragraphs 1-10 and 13 of the Motion for Preclusive Order requested copies of applicable rules and legal authority. Petitioner's requests for documents in paragraphs 1-10 and 13 are denied. They are not proper subjects of a request for production of documents.

       
       

    2. Paragraph 12 requested names and addresses of witnesses to be called by Respondent. Respondent complied with Petitioner's request. Respondent timely produced the requested material in Respondent's Pre-Hearing Stipulation.

       
       

    3. Paragraph 11, requesting copies of the "feature/characteristic inventory reference" showing the characteristics of the roadways included in the three state projects at issue in this proceeding, was timely and reasonable. However, Petitioner's request to preclude evidence pertaining to the feature/characteristic inventory reference is denied. The Invitation to Bid requires each bidder to inspect each of the job sites. Petitioner inspected the job sites at issue in this proceeding, has previous experience in performing contracts for Respondent, and was not prejudiced by the denial.

19. Petitioner has the burden of proof in this proceeding and must demonstrate that the ITB and Amended ITB were arbitrary, capricious, or beyond the scope of Respondent's discretion as a state agency ("arbitrary or capricious"). Capeletti Brothers, Inc. v. State Department of General Services,

    432 So.2d 1359, 1363 (Fla. 1st DCA 1983); Volume Services Division v. Canteen Corp., 369 So.2d 391, 395 (Fla. 2d DCA 1979); Mayes Printing Company v. Flowers,

    154 So.2d 859, 864 (Fla. 1st DCA 1963); William A. Berbusse, Jr., Inc. v. North Broward Hospital Dist., 117 So.2d 550 (Fla. 2d DCA 1960). 8/

    
    

20. Plans and specifications contained in an invitation to bid must be sufficiently precise to protect the public against collusive contracts, prevent favoritism toward contractors, and secure fair competition upon equal terms to all bidders. Plans and specifications must afford a basis for an exact comparison of bids and must not reserve to an officer of the public body the power to make exceptions, releases, and modifications that will afford opportunities for favoritism after the contract is let, whether or not any favoritism is actually practiced. Wester v. Belote, 103 So 721 (Fla. 1931); Clark v. Melson, 89 So 495 (Fla. 1921); Suburban Inv. Co. v. Hyde, 55 So 76 (Fla. 1911). Such plans and specifications must be adopted prior to receiving bids. Wester, 103 So. at 724; Robinson's, Inc. v. Short, 146 So.2d 108 (Fla. 1st DCA 1962).

    
    

21. Plans and specifications satisfy the test of specificity if the plans and specifications satisfy several requirements. Plans and specifications must not tend to unduly increase any bid, and must not be inherently uncertain or unreasonable. The discretion vested in the public body soliciting the bids must not have been abused. The accepted bid must be a reasonable price for the work. The law must be substantially complied with, and the contract awarded must be fair and capable of just and lawful enforcement. Suburban Inv. Co., 55 So at 78.

    
    

22. The terms of the ITB and Amended ITB were not so ambiguous or vague that they rendered the ITB and Amended ITB arbitrary, capricious, or beyond the scope of the Respondent's discretion. No evidence was presented of an undue increase in any bid or of the unreasonableness of the price to be paid pursuant to the bid process. 9/ Similarly, Petitioner presented no evidence that Respondent abused its discretion in soliciting the bids or that the contract to be awarded was not fair and capable of just and lawful enforcement. 10/ The only issues for determination, therefore, are whether the ITB and Amended ITB were inherently uncertain or unreasonable and whether the ITB and Amended ITB substantially complied with applicable law.

    
    

23. The terms of the ITB and Amended ITB were not inherently uncertain or unreasonable. The prohibition against arbitrary and capricious standards does not prohibit standards that allow the honest exercise of discretion based on custom, variations in local growth conditions, and cutting height.

    
    

24. The definition of grasses and weeds to be mowed in a roadside area is not arbitrary or capricious either because it fails to include other varieties of vegetation that may or may not be present in the roadside areas covered in the ITB and Amended ITB or because it fails to differentiate between toughness and clumping characteristics among alternate varieties of grasses and weeds.

    The definition of routine mowing by reference to an estimate of the frequency of that will be required is not arbitrary or capricious. The definition of routine mowing must be flexible enough to allow for variations in local growth conditions in order to avoid damage to heat stressed grass and in order to mow more frequently during periods of heavy rain. A cutting height requirement that

    is difficult to comply with either because of the topography present in a roadside area to be mowed or because of variations in the toughness and clumping characteristics of the grasses and weeds present in the roadside area is not an arbitrary and capricious requirement.

    
    

25. A public body has wide discretion in soliciting and accepting bids. Such a decision will not be overturned if it is based on an honest exercise of discretion even though the decision appears to be erroneous and even though reasonable persons may disagree with the decision. Liberty County v. Baxter's Asphalt and Concrete, Inc., 421 So.2d 505, 507 (Fla. 1982); Culpepper v. Moore, 40 So.2d 366 (Fla. 1949).

    
    

26. Plans and specifications have been determined to be specific enough to afford an exact comparison of bids even though the plans and specifications erroneously designated a private road as a public road and the road was necessary to gain access to the site of the project bid. Capeletti Brothers, Inc., 432 So.2d at 1359. 11/ Plans and specifications have been determined to be too vague and indefinite to afford an exact comparison of bids where bids for printing of government forms contained a requirement for the bidder to submit samples, include a statement of fastening specifications, and a statement of the method of fastening, but reserved to a public officer the right to determine which samples submitted by the bidders best met the public officer's needs. Robinson's, Inc. v. Short, 146 So.2d at 113.

    
    

27. This proceeding is not factually analogous to the situation in Robinson's. In Robinson's, the evidence established that the Tax Collector of Broward County knew at the time he wrote the plans and specifications that the only method of fastening the government forms that would satisfy the Tax Collector was stapling. The only bidder that used stapling was Robinson's, Inc., with whom the Tax Collector had favorable experience. The Tax Collector awarded the bid to Robinson's, Inc., based on the Tax Collector's favorable experience with that bidder and the assistance given to him by that bidder; rather than the actual price of the bids. No evidence was presented in this proceeding that Respondent's actions were analogous to those of the Tax Collector in Robinson's.

    
    

28. This proceeding is factually analogous to the situation in Capeletti Brothers. In Capeletti Brothers, any uncertainty created by designating the private access road as a public road was cured by the requirement that bidders personally inspect the project site. As in Capeletti Brothers, the ITB and Amended ITB required Petitioner to personally inspect each of the sites of the three state projects at issue in this proceeding.

    
    

29. Respondent's failure to attach a copy of Part VI of the Manual on Uniform Traffic Control Devices ("MUTCD") is not material to a resolution of this protest, and did not violate Florida law. Subsection 316.0745, Florida Statutes, in relevant part requires Respondent to compile and publish a manual of uniform traffic control devices defining the uniform system defined in Subsection 316.0745. Subsection 337.11(10) in relevant part requires each contract let for the performance of road or bridge maintenance to contain a traffic maintenance plan. Subsection 337.11(10) does not require each contract let to include a copy of the manual described in Subsection 316.0745.

    
    

30. Subsection 337.11(10) requires that each contract let by Respondent must include a traffic maintenance plan that shows the appropriate regulatory speed signs and traffic control devices for the work zone area. Paragraph 9 of the General District Contract specifications incorporated the requirements of

    Part VI of the MUTCD by reference and made those requirements applicable to the work zone areas at issue in this proceeding. The incorporation by reference of the requirements of Part VI of the MUTCD and the tractor safety devices shown on Page 46 of the ITB and Amended ITB satisfy the requirement in Subsection 337.11(10) for the inclusion of a traffic maintenance plan showing the appropriate regulatory devices to be used at the work site.

    
    

31. Respondent's failure to include a copy of the form of contract and bond constituted an act of nonfeasance by a public body. Respondent's nonfeasance, in and of itself, was Improper even though there is no evidence to suggest that Respondent's nonfeasance was anything but inadvertent. Respondent compounded its nonfeasance by requiring each bidder to sign a statement in the bid proposal that the bidder had "...carefully and to [its] satisfaction examined the form of Contract and Bond...". Respondent had an affirmative duty to provide any documents which were within Respondent's possession and which Respondent required bidders to review before submitting bid proposals. 12/ However, Respondent's nonfeasance did not prevent either a fair competition upon equal terms to all bidders or an exact comparison of all bids. Respondent's omission of the form of contract and bond occurred for all bidders and did not leave any one bidder in an unequal or unfair position.

    
    

32. Unlike the situation in Capeletti Brothers, the uncertainty created by Respondent's nonfeasance was not cured by Respondent's requirement in the bid proposal that each bidder personally inspect the form of contract and bond. Respondent prevented such a personal inspection by each bidder. However, Respondent's nonfeasance did not create the same degree of uncertainty and unreasonableness in the terms of the ITB and Amended ITB that the erroneous reference to the public access road created in the plans and specifications at issue in Capeletti Brothers. 13/ Furthermore, any uncertainty and potential for unreasonableness that was created by Respondent's nonfeasance was cured in this proceeding by the Mandatory Pre-Bid Conference. Any bidder who wished to do so, including Petitioner, could have requested a copy of the form of contract and bond at the Mandatory Pre-Bid Conference.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner's written formal protest be DENIED.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 3rd day of August, 1990.

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 3rd day of August, 1990.

ENDNOTES

1/ All statutory references are to Florida Statutes (1989) unless otherwise specifically provided.

2/ Paragraphs 6(a)-(k) of the Prehearing Order pertain to expedited discovery procedures to be used in bid protest proceedings. Paragraphs 6(c) and (d), in relevant part, provide that objections to requests for production of documents must be made within 48 hours of the request and that documents must be produced within 72 hours of the original request.

3/ The actual location in the ITB of the word "attached" cannot be independently determined because a copy of the original ITB was never admitted in evidence. Six copies of the Amended ITB were admitted in evidence. See infra para. 2, Findings of Fact. The evidence is uncontroverted, however, that the word "attached" appeared as the last word in Para. VI.A. of the original ITB.

4/ The Amended ITB contained the same requirement but the Mandatory Pre-Bid Conference occurred prior to the date the Amended ITB was issued.

5/ The parole evidence rule does not bar evidence of custom or usage to explain or supplement a contract. Black's Law Dictionary, at 347 (West 5th ed. 1979).

6/ Section I, Description A, page 19, in relevant part requires the mowing of roadside areas consisting of "all grass, part grass, and part succulent weed growth (1" diameter or less) or all succulent weed growth (1" diameter or less)". Such a definition of grass or vegetated areas excludes herbaceous plants such as ragwort, woody stem growth, leguminous plants, and vines. Such plants and vines are either tougher than grass and weeds or grow to greater toughness if not maintained on a regular basis.

7/ A green streak is defined as an area left uncut between passes by the mower. Page 21, IV.B.3., line 3, requires mowers to be constructed so that height cut can be adjusted to a minimum of six inches. Page 23, Section VIII.A., Quality, requires all grass and vegetation be cut to a height of six inches or greater at the direction of the engineer with a maximum tolerance of plus or minus 1/2 inch.

8/ See also System Development Corp. v. Department of Health and Rehabilitative Services, 423 So.2d 433, 434 (Fla. 1st DCA 1982); Glatstein v. City of Miami,

399 So.2d 1005 (Fla. 3rd DCA 1981) (pertaining to the burden of proof in an administrative proceeding involving a protest of a request for proposals).

9/ Petitioner's testimony pertaining to variations between estimated acreage in the ITB and Amended ITB and the actual acreage of the roadside areas to be mowed is not relevant to any of the factual allegations in Petitioner's formal written protest. Even if such testimony had been relevant, it was not persuasive in the absence of either supporting documentation or expert opinion.

10/ The operative pleadings and the documents in the file transferred from Respondent to the Division of Administrative Hearings suggest there was a prior dispute between Respondent and Petitioner over Respondent's alleged abuse of discretion in determining whether Petitioner had complied with the terms of a prior state contract. Petitioner presented no evidence that Respondent abused its discretion in making that determination.

11/ Plans and specifications that call for so much of 50,000 yards of oyster shell as needed from time to time for the purpose of road repair have been judged specific enough to afford an exact comparison of bids. Wester, 138 So at 725. Plans and specifications that require samples of bricks to be used in the construction of public buildings but fail to prescribe the time for submitting such samples have also been determined to pass the test of specificity.

Suburban Inv. Co., 55 So at 78.

12/ No evidence was presented that the form of contract and bond were provided to bidders at the Mandatory Pre-Bid Conference. Instead, Respondent argued in its proposed findings of fact and conclusions of law that the ITB and Amended ITB were a standard form contract developed by the Department of General Services and tailored to contracts for mowing services by the Technical Specifications.

13/ Despite the apparent superior bargaining power of Respondent over small contractors that may have been bidders on the three state projects at issue in this proceeding, Respondent would undoubtedly have difficulty in requiring the successful bidder to sign a contract and bond that was not in substantial compliance with the General District Contract specifications and the form of bond customarily used by Respondent for similar contracts.

APPENDIX TO RECOMMENDED ORDER, CASE NOS. 90-3243BID, 90-3244BID and 90-3245BID

Petitioner 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. No notation is made for unnumbered paragraphs.

The Petitioner's Proposed Findings of Fact

Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection

1-7 Rejected as a conclusion of law

7-11 Omitted from proposed findings

12 Rejected as immaterial

13-16 Rejected as not supported by competent and substantial evidence

1. Accepted in findings 4, 9

   
   

2. Rejected as immaterial

   
   

3. Rejected as impertinent

20-22 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

1 Rejected in part as to dates Petitioner received documents. That part rejected is not supported by competent and substantial evidence.

Remainder accepted in findings 2, 5

2-3 Accepted in Findings 8, 10

1. Rejected as irrelevant except for last sentence. Last sentence accepted in finding 12

   
   

2. Accepted in finding 4

   
   

3. Accepted in finding 6

   
   

4. Accepted in finding 10

   
   

5. Accepted in finding 3

COPIES FURNISHED:

Ben G. Walls, Secretary, Dept. of Transportation Attention: Eleanor F. Turner, M.S. 58

Haydon Burns Building 605 Suwannee Street

Tallahassee, Florida 32399-0458

Thornton J. Williams, Esquire

General Counsel, Department of Transportation

562 Haydon Burns Building Tallahassee, Florida 32399-0458

Walter R. Shaw, Allied Mowing Service 1400 Northwest 62nd Avenue

Sunrise, Florida 33313

Susan P. Stephens, Esq. Department of Transportation 605 Suwannee Street, MS-58 Tallahassee, Florida 32399

Docket for Case No: 90-003243BID

Orders for Case No: 90-003243BID