STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

REED LANDSCAPING, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 93-1944BID

) DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Michael M. Parrish, conducted a formal hearing in this case at Fort Lauderdale, Florida, on June 4, 1993. Appearances for the parties at the hearing were as follows:

APPEARANCES

For Petitioner: Mr. Albert Laskow

Reed Landscaping, Inc.

951 Southwest 121st Avenue

Fort Lauderdale, Florida 33325-3807

For Respondent: William H. Roberts, Esquire

Assistant General Counsel Department of Transportation

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399-0458 STATEMENT OF THE ISSUES

This is a bid challenge case in which the low bidder has challenged an agency decision to reject all bids and rebid the project at a later time.

PRELIMINARY STATEMENT

At the formal hearing on June 4, 1993, in order to provide for a smoother and quicker presentation of evidence, the Hearing Officer directed the Respondent, Department of Transportation, to present its evidence first. The Respondent presented the testimony of two witnesses, one of whom was later recalled as a rebuttal witness. The Respondent presented the testimony of one witness. Further, each party offered one exhibit to be received as the offering party's exhibit. The parties also offered two joint exhibits. All four exhibits were received. The parties also filed a prehearing statement in which they stipulated to some facts.

At the conclusion of the formal hearing the parties were allowed two weeks from the filing of the transcript of the hearing within which to prepare and file their respective proposed recommended orders. The transcript was filed on

June 24, 1993, and on July 8, 1993, both parties filed timely proposed recommended orders containing proposed findings of fact and conclusions of law. Specific rulings on all proposed findings of fact submitted by all parties are contained in the Appendix to this Recommended Order. During the preparation of this Recommended Order the Hearing Officer has given careful consideration to the proposed recommended orders submitted by both parties. The Hearing Officer is of the view that the position advocated by the Respondent is essentially correct, and in the formulation of this Recommended Order has drawn extensively from the Respondent's proposed recommended order.

FINDINGS OF FACT

Stipulated facts

1. Bids for State Project No. 86170-301 were accepted by Respondent on or about March 5, 1993. Eight companies provided bids.

2. The bids were evaluated by a three person committee consisting of James Wolfe, Teresa Martin, and Ray Pippitt.

   
   

3. Some of the bidders bid the job strictly according to plans, and some of them bid the job as already sleeved. The bid tabulation was posted on March 17, 1993, noticing Department intent to reject all bids.

   
   

4. Petitioner filed a protest on March 25, 1993, and a formal protest on March 29, 1993.

   
   

   Additional facts proved at hearing

   
   

5. The Petitioner is the low bidder in a field of eight responsive bidders who submitted bids for the subject project.

   
   

6. The subject project included the placement of an irrigation system and landscaping items. Sleeving is part of most highway irrigation projects and is an integral part of the irrigation pay item for the subject project. The sleeving shown on the plans for the subject project were for paved areas. The sleeving process consists of jacking pipes underneath existing pavement and then inserting smaller irrigation pipes inside the pipes that were jacked under the pavement.

   
   

7. Theresa Martin is the District Contracts Administrator for the Department in the District in which the subject project was proposed to be undertaken. Ms. Martin reviews each bid to insure completeness, to verify various prices, and to input the bids into a computer system, after which she provides recommendations for the awards committee. Only bids that the computer program shows to be either 15 percent above or 15 percent below estimate are required to go to the awards committee for review. On the subject project, the computer program showed that some of the bids were 15 percent below estimate.

   
   

8. Ms. Martin followed all standard procedures in the handling of the bids on the subject project. She handled the bids on the subject project she same as she has handled any other project. After conducting her review of the bids on the subject project, Ms. Martin prepared a report which was given to the estimator, Mr. Ray Pippitt.

   
   

9. On March 8, 1993, Ms. Martin received a telephone call from a representative of Reed Landscaping, Inc., as well as a telephone call from a representative of Siga, Inc., another bidder on the project. The caller from

   Reed Landscaping, Inc., a Mr. Bob Dalin, asked Ms. Martin if the sleeves would be constructed by the current contractor prior to Reed Landscaping, Inc., beginning work on the landscaping irrigation system. Mr. Dalin indicated that if the sleeves were not going to be constructed by the current contractor, then Reed Construction, Inc., had bid the job too low.

   
   

10. Mr. Larry Hughes of Siga, Inc., told Ms. Martin that he had heard that the job would be sleeved prior to work beginning on the subject project and that if that were true, then Siga had bid the job too high because it thought it would be responsible for sleeving. Mr. Hughes indicated that this would add ten to twelve thousand dollars to Siga's bid.

    
    

11. Mr. Ray Pippitt, the Deputy District Design Engineer, reviewed the bids and the computer program for the subject project, as well a the report prepared by Ms. Martin. There was a difference of over 200 percent between the low and high bids on the irrigation pay item for the subject project. This was a substantial discrepancy from what would normally have been expected. The irrigation pay item comprized approximately 19 percent of the overall bid price.

    
    

12. Page 16 of the plans for the subject project contained another potential source of confusion; namely, a note calling for both lump sum and unit pricing for the irrigation pay item, which includes the sleeving.

    
    

13. Based on conversations with bidders on the subject project and with the project manager on an existing project that was in the course of being performed, Ms. Martin and Mr. Pippitt formed the opinion that sleeving would be done by the roadway contractor who was already on site. Ms. Martin and Mr. Pippitt both recommended rejection of all bids based on the apparent confusion as to the sleeving item and based on the apparent differences between the plans and actual field conditions at the time of letting bids for the subject project.

    
    

14. The possibility of internal confusion in the bid language, the possibility of inconsistency between the bid plans and actual site conditions, and the possibility of other confusion among the bidders regarding the need for sleeves were not apparent to the Department of Transportation prior to the opening of the bids.

    
    

    CONCLUSIONS OF LAW

    
    

15. The parties have resolved some of the legal issues by stipulation. They have both stipulated that the Division of Administrative

    Hearings has jurisdiction over the subject matter of and the parties to this proceeding. They have also stipulated that the Petitioner's intent to protest and formal protest were timely filed, and that the Department of Transportation is authorized by statute to reject all bids.

    
    

16. The basic legal principles applicable to a case of this nature are summarized in Systems/Software/Solutions v. Department of Transportation, DOAH Case No. 92-0339BID, Recommended Order issued March 12, 1992, where Hearing Officer Kilbride wrote:

    
    

    1. The law of Florida has established that a strong deference be accorded an agency's decision in competitive bidding situations:

       [A] public body has wide discretion in soliciting and accepting bids for public improvements and its decision, when based on an honest exercise of this discretion, will not be overturned by a court even if it may appear errneous and even if reasonable persons may disagree.

       
       

       Liberty County v. Baxter's Asphalt and Concrete, Inc., 421 So.2d 505, 507 (Fla. 1982).

       
       

    2. In deciding Department of Transportation v.

       Groves-Watkins Constructors, 530 So.2d 912 (Fla. 1988), the Supreme Court of Florida ruled that the Liberty County decision established the standard by which an agency's decision on competitive bids for a public contract should be measured when it further held that the agency's discretion, as stated above, cannot be overturned absent a finding of "illegality, fraud, oppression or misconduct." Groves-Watkins, 530 So.2d at 913.

       
       

    3. The Groves-Watkins standard was recently reiterated in Scientific Games, Inc. v. Dittler Brothers, Inc., 586 So.2d 1131 (Fla.1st DCA 1991). In Scientific Games, Inc., the Court was determining the scope of discovery to be permitted in an administrative proceeding concerning the evaluation of an RFP. The Court concluded that the scope of discovery must be viewed in light of the proper standard of review to be employed by the Hearing Officer in these types of proceeding and stated:

       
       

       The Hearing Officer need not, in effect, second guess the members of the evaluation committee to determine whether he and/or other reasonable and well- informed persons might have reached a contrary result . . . "[T]he Hearing Officer's sole responsibility is to ascertain whether the agency acted fraudulenty, arbitrarily, illegally, or dishonestly." Groves- Watkins, 530 So.2d at 914.

       
       

       Scientific Games, Inc., 586 So.2d at 1131. See, also,

       C.J. Courtenay v. Department of Health and Rehabilitative Services, 581 So.2d 621 (Fla. 5th DCA 1991) (It is not the Hearing Officer's function to reweigh award factors and award to protestor).

       
       

17. Application of the foregoing legal principles to the facts in this case leads inescapably to the conclusion that the Petitioner's bid protest in this case should be dismissed, because the evidence in this case is insufficient to establish that the agency action challenged here was fraudulent, arbitrary, illegal, or dishonest. To the contrary, the greater weight of the evidence is to the effect that the Department of Transportation's decision to reject all bids was a reasonable exercise of the agency's discretion in view of the fact that some of the bidders were confused as to what was actually required under the proposed project and the bids received reflected a greater than usual difference between the highest and lowest bids.

RECOMMENDATION

On the basis of all of the foregoing, it is RECOMMENDED that a Final Order be issued in this case dismissing the Petitioner's bid protest and denying the relief requested by Petitioner.

DONE AND ENTERED this 27th day of July, 1993, at Tallahassee, Leon County, Florida.

MICHAEL M. PARRISH

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 27th day of July, 1993.

APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 93-1944BID

The following are my specific rulings on all proposed findings of fact submitted by all parties.

Findings submitted by Petitioner:

The Petitioner has divided its proposed findings of fact into two groups; one group under the caption "Preliminary Statement Of Fact," which contains five numbered paragraphs, and another group undet the caption Finding Of Fact," which contains eleven unnumbered paragraphs. Attention is addressed first to the "Preliminary Statement Of Fact."

Paragraph 1: Rejected as not supported by competent substantial evidence.

Paragraphs 2 and 3: Accepted in substance with some unnecessary details omitted.

Paragraphs 4 and 5: Rejected as consisting primarily of statement of position or argument, rather than proposed findings

of relevant fact.

Attention is addressed now to the unnumbered paragraphs following the caption "Finding Of fact."

First, second, and third unnumbered paragraphs: Rejected as consisting primarily of statement of position or argument, rather than proposed findings of relevant fact.

Fourth, fifth, sixth and seventh unnumbered paragraphs: Rejected as subordinate and unnecessary details in view of the parties' stipulation that "[s]ome of the bidders bid the job strictly according to plans, and some of them bid the job as already sleeved."

Eighth unnumbered paragraph: Rejected in part as subordinate and unnecessary details and also rejected because the second sentence is not fully supported by the evidence and contains inferences which are not fully supported by the evidence.

Nineth unnumbered paragraph: Rejected as irrelevant and as subordinate and unnecessary details.

Tenth and eleventh paragraphs: Rejected for several reasons, including the fact that these paragraphs constitute subordinate and unnecessary details.

Further, there are conflicts in the evidence regarding portions of the findings proposed in these paragraphs and I have resolved those conflicts in favor of the Department of Transportation's version of the facts. And as a final matter it is noted that under either version of the facts, the facts as found by the Hearing Officer or the facts proposed in these two paragraphs, the ultimate conclusion would be the same because neither version of the facts is sufficient to show that "the agency acted fraudulently, arbitrarily, illegally, or dishonestly,"

Findings submitted by Respondent:

Except as specifically noted below, the substance of all proposed findings of fact submitted by the Respondent has been accepted.

Paragraph 8: The difference between the high and low bids on the irrigation pay item appears to be slightly more than 200 percent.

Paragraph 10: Last sentence rejected as irrelevant.

COPIES FURNISHED:

Mr. Albert Laskow

Reed Landscaping, Inc.

951 Southwest 121st Avenue

Fort Lauderdale, Florida 33325-3807

William H. Roberts, Esquire Assistant General Counsel Department of Transportation 605 Suwannee Street, M.S. 58

Tallahassee, Florida 32399-0458

Thornton J. Williams, Esquire General Counsel

Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street

Tallahassee, Florida 32399-0458

Ben G. Watts, Secretary Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street

Tallahassee, Florida 32399-0458

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 93-001944BID

Orders for Case No: 93-001944BID