STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DAMALOS & SONS, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 91-6806BID

) DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in the above-styled case on November 8, 1991, at Tallahassee, Florida.

APPEARANCES

For Petitioner: Tony Damalos, pro se

Post Office Box 3796 Holiday, Florida 34690-0796

For Respondent: Susan P. Stephens, Esquire

605 Suwannee Street

Tallahassee, Florida 32399-0450 STATEMENT OF THE ISSUES

Whether Frontier Enterprises Inc.'s bid on State Project Job No. 99003-3583 was timely submitted.

PRELIMINARY STATEMENT

By letter dated September 23, 1991, Damalos and Sons Inc., Petitioner, challenged the action of the Department of Transportation, Respondent, in proposing to award the contract on State Project Job No. 99003-3583 to Frontier Enterprises Inc. as the low bidder. As grounds for the challenge, it is alleged that following the bid opening Petitioner called Respondent to ascertain bids submitted on this project and was told National Bridge was low bidder and Petitioner was second low bidder. The next day Petitioner heard a different low bidder had been named. At this time, September 20, 1991, Petitioner again called the Department and was informed that the second low bidder was Frontier Enterprises Inc. and that Respondent was third low bidder. Respondent's late acceptance of Frontier Enterprises' bid is the sole basis for Petitioner's challenge in these proceedings. At the commencement of the hearing, the parties submitted a Joint Prehearing Stipulation and; thereafter, Petitioner called one witnesses, Respondent called two witnesses and seven exhibits were admitted into evidence.

There is no factual dispute in these proceedings. Accordingly, proposed findings submitted by Respondent are accepted, except for proposed finding #2

insofar as it is in conflict with hearing officer's finding #10 below. Having considered all evidence presented, I submit the following.

FINDINGS OF FACT

1. Respondent solicited bids on State Project Job No. 99003-3583 to be accepted September 19, 1991, up until 11 a.m., the time set for bids to be opened.

   
   

2. Petitioner's bid on this contract was timely submitted.

   
   

3. Respondent posted its intent to award this contract to Frontier Enterprises Inc. on September 26, 1991, and thereafter Petitioner timely filed its protest.

   
   

4. When the five bids submitted on this project were opened September 19, 1991, the three low bidders listed were:

   
   

   National Bridge Painting	$129,472
   Damalos and Sons Inc.	$245,000
   Midwest Industries	$294,744

   
   

5. Following the posting of these bids, Frontier Enterprises telephoned the DOT employee responsible for the opening of the bids and advised that it had timely submitted a bid which was received by DOT September 19, 1991.

   
   

6. Shortly after the bids were opened and posted, National Bridge, by letter dated September 20, 1991, withdrew its bid due to a calculation error.

   
   

7. Frontier Enterprises submitted their bid by UPS and instituted a tracer which revealed that their bid had been received at the DOT mail room in Chipley, Florida, on September 19, 1991, around 9:30 a.m., prior to the bid opening, in a UPS envelope. DOT's search for the Frontier Enterprises bid located the UPS envelope in a DOT office in Chipley which was unoccupied on September 19, 1991.

   
   

8. The mail clerk who received the UPS envelope containing Frontier Enterprises' bid recalls receiving three UPS envelopes September 19, 1991, but does not specifically recall receiving the Frontier Enterprises bid, although he recognizes his signature on the tracer response. (Exhibit 2)

   
   

9. After locating the misplaced Frontier Enterprises bid, Respondent opened that bid as it had opened all other bids and tabulated the bids received in order from low to high. (Exhibit 4) This tabulation showed the low bid submitted as having been withdrawn, Frontier Enterprises as second lowest bidder and Petitioner as third lowest bidder.

   
   

10. Respondent's witnesses testified without contradiction that, although the Bid Solicitation Notice (Exhibit 1) provided that sealed bids will be received in the Conference Room in the Chipley Department of Transportation District Office until 11 a.m., September 19, 1991, the normal procedure followed by bidders is to have their bids sent to the mail room at the Chipley DOT office. Accordingly, when it was learned that Frontier Enterprises' bid had been timely submitted and was, in fact, the lowest responsive bid, Frontier Enterprises was awarded the contract.

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

    
    

12. In these proceedings, the Petitioner has the burden to prove, by a preponderance of the evidence, that the Department of Transportation acted fraudulently, arbitrarily, illegally or dishonestly in awarding the contract to Frontier Enterprises Inc. Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977); Department of Transportation v. Groves-Watkins Constructors, 530 So.2d 912 (Fla. 1988)

    
    

13. A capricious action is one which is taken without thought, reason or rationality. An arbitrary decision is one not supported by fact or logic, or is despotic. Administrative discretion must be reasoned and based upon competent substantial evidence. Competent substantial evidence has been described as such evidence as a reasonable person would accept as adequate to support a conclusion. Agrico Chemical Co. v. State, etc., 365 So.2d 759 (Fla. 1st DCA 1978)

    
    

14. Here, Frontier Enterprises submitted its bid in a timely manner, but due to a mix-up at the DOT Chipley office, the bid was not delivered to the conference room where the other bids were opened at 11 a.m., September 19, 1991. It would be arbitrary and capricious for Respondent to refuse to accept Frontier Enterprises' bid for the reason that it was not opened at the designated bid opening time, when, in fact, the bid was timely submitted.

    
    

15. From the foregoing, it is concluded that Frontier Enterprises' bid was timely submitted, was the lowest responsive bid received and that Frontier Enterprises should be awarded the contract on State Project Job No. 99003-3583.

RECOMMENDATION

It is recommended that a Final Order be entered dismissing the bid protest filed by Damalos and Sons Inc.

RECOMMENDED this 6th day of December, 1991, in Tallahassee, Florida.

K. N. AYERS Hearing Officer

Division of Administrative Hearings The Desoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 6th day of December, 1991.

COPIES FURNISHED:

Tony Damalos

Post Office Box 3796 Holiday, FL 34690-0796

Susan P. Stephens, Esquire Department of Transportation 605 Suwannee Street

Tallahassee, FL 32399-0450

Ben G. Watts Secretary

Department of Transportation 605 Suwannee Street

Tallahassee, FL 32399-0458 ATTN: Eleanor F. Turner, MS 58

Thornton J. Williams General Counsel

Department of Transportation

562 Haydon Burns Building Tallahassee, FL 32399-0458

Docket for Case No: 91-006806BID

Orders for Case No: 91-006806BID