STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CERTIFIED SWEEPING, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 93-3667BID

) DEPARTMENT OF TRANSPORTATION, )

)

Respondent, )

and )

)

FLORIDA SWEEPING, INC. )

)

Intervenor. )

)

RECOMMENDED ORDER

Pursuant to Notice, a formal hearing was conducted in this case on July 23, 1993, in Fort Lauderdale, Florida before J. Stephen Menton, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Raymond R. Hanousek, pro se President

Certified Sweeping, Inc. Post Office Box 1179

Deerfield Beach, Florida 33443-1179

For Respondent: William H. Roberts, Esquire

Assistant General Counsel Department of Transportation Tallahassee, Florida 32399-0450

For Intervenor: F. Malcolm Cunningham, Jr.

Cunningham & Self Reflections, Suite 400

450 Australian Avenue, South West Palm Beach, Florida 33401

STATEMENT OF THE ISSUE

The issue presented in this case is whether the Respondent Department of Transportation's proposed award of District Contract Nos. E6548 and E6551 to the Intervenor, Florida Sweeping, Inc. ("Florida Sweeping,") should be upheld.

PRELIMINARY STATEMENT

In the spring of 1993, the Respondent, the Florida Department of Transportation ("FDOT") set out for bid several contracts for the mechanical sweeping of roads and bridges in FDOT District Six. Petitioner, Certified Sweeping, Inc. ("CSI"), submitted a bid for several of the contracts as did Intervenor Florida Sweeping and at least one other company. On June 3, 1993, FDOT posted its Notice of Intent to Award the Contracts E6548 and E6551 to Florida Sweeping. As discussed in more detail in the Findings of Fact below, CSI challenged the proposed award claiming that the bids submitted by Florida Sweeping should not be accepted because they were "nonresponsive" to the bid requests. On June 11, 1993, CSI filed a formal written protest of the proposed award of the contracts to Florida Sweeping. The case was referred to the Division of Administrative Hearings which noticed and conducted a hearing pursuant to Sections 120.53(5) and 120.57, Florida Statutes.

At the commencement of the hearing, F. Malcolm Cunningham appeared on behalf of Florida Sweeping and requested that Florida Sweeping be granted intervenor status in this case. Neither party objected and Florida Sweeping was allowed to participate fully in the proceedings. Florida Sweeping filed a letter and written Petition to Intervene dated July 22, 1993 confirming its request to become a party to this case. That request is hereby granted.

At the hearing, CSI presented the testimony of three witnesses: Raymond Hanousek, president of CSI; Ann Warren, purchasing director for procurement of commodities and services for FDOT's District Six; and Monique Buice, director of Planning and Programs for FDOT's District Six. CSI offered two exhibits into evidence, both of which were accepted without objection.

FDOT also presented testimony from Ann Warren. In addition, FDOT presented testimony from Arnie Fernandez, the assistant district contracts maintenance engineer for Respondent. FDOT offered ten exhibits into evidence, all of which were accepted without objection.

Florida Sweeping cross-examined the witnesses called by the other parties, but did not present any witnesses of its own and did not offer any exhibits into evidence.

A transcript of the proceedings has been filed. The Respondent has submitted a proposed recommended order within the time frame established at the conclusion of the hearing. Neither CSI nor Florida Sweeping have submitted any proposed findings of fact or conclusions of law. A ruling on each of Respondent's proposed findings of fact is included in the Appendix attached to this Recommended Order.

FINDINGS OF FACT

Based upon the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made:

1. In the spring of 1993, FDOT's District Six office solicited bids for district contracts E6548 and E6551 (the "Contracts").

   
   

2. The Contracts call for the mechanical sweeping of certain segments of Interstate 95 in District Six.

3. At a mandatory pre-bid conference, the bidders for the Contracts were provided with a packet which included a Notice to Contractors and Standard Specifications. The Notice to Contractors sets forth the procedures for submitting and opening the bids. The Standard Specifications are the same for all district construction and maintenance contracts. An addendum to the Standard Specifications (the "Special Provisions") was included in the bid package for all sweeping contracts.

   
   

4. The Notice to Contractors for both of the Contracts required bidders to "provide with [their] bid, a copy of [their] occupational license issued in [the] company's name by the State of Florida." The Notice also provided that a

   
   

   [C]ontractor must possess a minimum of two

   [2] years' [sic] experience in providing the services specified. As proof, letters of reference must be included with the bid package indicating the contact person and the phone number of which [sic] the company has performed similar services in a satisfactorily [sic] manner. A contractor's bid may be rejected [emphasis in the original] if the reference letter(s) is not included in the

   bid package and/or does not specify that the contractor has the minimum experience required.

   
   

5. The Special Provisions which were an addendum to the Standard Specifications included the following provision:

   
   

   M110-31-5 Equipment

   
   

   The Contractor must have proof of ownership, or a signed lease for the duration of the contract for equipment suitable for meeting the requirements of this contract. A list of equipment to be used must be enclosed with the Contractor's bid. Where new equipment will be purchased, the Contractor shall provide a signed quotation from an equipment dealer, with a guaranteed delivery date, in order to insure that work can begin on time . . . .

   
   

6. On May 18, 1993, prior to the bid opening, the president of CSI contacted the FDOT personnel responsible for the bidding to inquire regarding the letters of reference. The president of CSI was told that anything that was a requirement of the bid package should be complied with. As a result, the president of CSI contacted the FDOT representatives that he had worked with in the past and obtained letters of reference. The reference letters from FDOT were submitted by CSI as part its bid proposals.

   
   

7. The bids for the Contracts were opened on May 20, 1993 in Fort Lauderdale, Florida. Bids were received on each contract from at least three bidders including CSI and Florida Sweeping, Inc.

8. The submitted bids were reviewed by the District Six Contractual Services Office. The bids submitted by Florida Sweeping were the lowest for each of the two contracts. At issue in this case is Florida Sweeping's bid for Contract No. E6548 which was $116,178.33. Its bid for Contract No. E6551 was

   $126,975.81. CSI's bids for the Contracts were $124,073.95 and $143,746.20, respectively.

   
   

9. There were several other sweeping contracts that were bid at the same time as the contracts at issue in this proceeding. On one of those other contracts, Contract E6550, CSI and Florida Sweeping submitted the exact same bid.

   
   

10. The bid proposals submitted by Florida Sweeping failed to include letters of reference and copies of the applicable occupational licenses. CSI's proposals included these items.

    
    

11. The evidence established that Florida Sweeping had successfully completed similar contracts for FDOT in the past and, therefore, FDOT was familiar with Florida Sweeping's work and knew that it had the necessary experience and equipment to perform the work required by the contracts.

    
    

12. While it is not clear whether Florida Sweeping currently has the occupational licenses required to perform the work under the contracts, the evidence established that the licenses can be obtained simply by applying and paying for them. The cost to obtain the licenses necessary to complete the work on these Contracts would not cost in excess of $178.00.

    
    

13. Petitioner contends that Florida Sweeping's bid proposals also failed to include an equipment list. However, the evidence established that such a list was included in the proposals submitted by Florida Sweeping. Florida Sweeping's proposals also included a list of current and previous contracts completed by the company for FDOT. Florida Sweeping has obtained letters of reference from FDOT in the past and could have obtained such letters for the Contracts at issue in this case.

    
    

14. Section 2.1 of the General Specifications in the bid package provides as follows:

    
    

    The Department will consider award of the contract to the lowest responsive and responsible bid which complies with all the requirements set forth in these specifications, and respective contract documents, and advertisement of bid. The Department reserves the right to award the work as determined to be in the best interest of the Department. The Department reserves the right to reject any or all bids or any single items of the bid, or waive any minor irregularity or technicality in proposals received.

15. In reviewing the bid proposals submitted, FDOT deemed Florida Sweeping's failure to include occupational licenses and letters of reference to be minor technicalities that could be waived in evaluating the responsiveness of the bids pursuant to Section 2.1 of the General Specifications cited above. This decision was consistent with prior agency determinations to waive the failure to include these documents in awarding similar contracts in the past.

    
    

16. It does not appear that Florida Sweeping has obtained any competitive advantage as a result of its failure to include occupational licenses and letters of reference in its bid proposals.

    
    

17. With respect to Contract E6550, FDOT decided to award that contract to CSI even though Florida Sweeping submitted a bid for an identical contract amount. FDOT's decision was based in part upon FDOT's conclusion that Florida Sweeping's proposal was not complete due to the failure to include an occupational license and letters of reference. FDOT's decision to award that contract to the more complete of two equal bidders does not mandate the award of the Contracts at issue in this case to CSI when the bid amounts were not equal.

    
    

18. The failure to include an occupational license and letters of reference rendered Florida Sweeping's bid proposals incomplete, but not necessarily nonresponsive. FDOT had the right under the bid documents to waive these minor omissions in order to receive a lower contract price.

    
    

19. In the fall of 1991, the predecessor of CSI was the low bidder for two FDOT sweeping contracts in this district. Another bidder protested the award of those contracts on the grounds that the proposals submitted by CSI's predecessor were nonresponsive due to the failure to include proof of the ability to acquire a performance and payment bond. A hearing was conducted by the undersigned hearing officer on January 16, 1992 and, in a Recommended Order issued on March 24, 1992, the undersigned Hearing Officer recommended that the proposals submitted by CSI's predecessor be rejected as nonresponsive. The result reached in that case is not contrary to the result reached herein because the bid documents in that earlier case required proof that the bidder could acquire a performance and payment bond upon award of the contract. Such proof was not provided. The failure to include that proof did not qualify as a technical omission.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

21. The purpose of competitive bidding was explicated in Hotel China & Glassware Co. v. Board of Public Instruction, 130 So. 2d 78, 81 (Fla. 1st DCA 1961), where the court stated as follows:

    
    

    Competitive bidding statutes are enacted for the protection of the public. They create a system by which goods or services required by public authorities may be acquired at the lowest possible cost. The system confers upon both the contractor and the public authority reciprocal benefits, and exacts from each of them reciprocal obligations. The bidder is assured fair consideration of his offer, and

    is guaranteed the contract if his is the lowest and best bid received. The principal benefit flowing to the public authority is the opportunity of purchasing the goods and services required by it at the best price obtainable. Under this system, the public authority may not arbitrarily or capriciously discriminate between bidders, or make the award on the basis of personal preference.

    
    

22. Competitive bidding statutes should be construed to advance their purpose and to avoid their being circumvented. Webster v. Belote, 103 Fla. 976, 138 So. 721 (1931).

    
    

23. FDOT is authorized to solicit bids for the maintenance of roads designated as part of the State Highway System and any roads placed under its supervision by law and may award contracts pursuant thereto to the lowest responsible bidder. See Section 337.11, Florida Statutes.

    
    

24. Section 120.53(5), Florida Statutes, establishes a statutory framework for resolution of protests arising from the contract bidding process.

    
    

25. The Florida Supreme Court's decision in Department of Transportation

v. Groves-Watkins, 530 So. 2d 912 (Fla. 1988) sets forth the standard for review. See also, Capeletti Brothers, Inc. v. Department of General Services,

423 So. 2d 1359 (Fla. 1st DCA 1983); Couch Construction Company v. Department of Transportation, 361 So. 2d 172 (Fla. 1st DCA 1978); Scientific Games, Inc. v. Dittler Brothers, Inc., 586 So. 2d 1131 (Fla. 1st DCA 1991).

26 "[T]he hearing officer's sole responsibility is to ascertain whether the agency acted fraudulently, arbitrarily, illegally, or dishonestly." Groves- Watkins, supra, 530 So.2d at 914. FDOT's actions in this case do not fall in any of those categories.

1. The bid documents gave FDOT the right to waive minor technicalities or omissions in the proposals. The evidence established that, even if Florida Sweeping did not have the appropriate occupational licenses, it could obtain such licenses at minimal cost. In addition, the evidence established that Florida Sweeping had satisfactorily completed work on similar sweeping contracts for DOT in the recent past. Thus, letters of reference were superfluous.

   
   

2. The test for measuring whether deviation in a bid proposal is sufficiently material to destroy its competitive character is whether the variation affects the bid by giving the bidder an advantage or benefit not enjoyed by the other bidders. Harry Pepper and Associates, Inc. vs. The City of Cape Coral, 352 So.2d 1190, 1193 (Fla. 2nd DCA 1977). The omissions in this case did not give Florida Sweeping any advantage.

   
   

3. In sum, FDOT's decision to waive the minor omissions in Florida Sweeping's bid proposals in order to obtain the lower contract prices offered by Florida Sweeping did not depart from the essential requirements of law. "There is a very strong public interest in favor of saving tax dollars in awarding public contracts. There is no public interest, much less a substantial public interest, in disqualifying low bidders for technical deficiencies in form, where the low bidder did not derive any unfair competitive advantage by reason of the technical omission." Intercontinental Properties, Inc. vs. State Department of

Health and Rehabilitative Services, 606 So.2d 380, 386 (Fla. 3rd DCA 1992). See also, Overstreet Paving Co. vs. Department of Transportation, 608 So.2d 851 (Fla. 2nd DCA 1992).

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding the bids submitted by

Florida Sweeping to be responsive and dismissing the challenges filed by

Certified Sweeping.

DONE and ENTERED this 29th day of September 1993, at Tallahassee, Florida.

J. STEPHEN MENTON 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 29th day of September 1993.

ENDNOTE

1/ As indicated above, Florida Sweeping's proposals were approximately

$10,000.00 lower on one contract and $20,000.00 lower on the second.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-3667BID

Only the Respondent submitted Proposed Findings of Fact.

Respondent's Proposed Findings of Fact

1. Adopted in substance in Findings of Fact 7 and 8.

2. Adopted in substance in Findings of Fact 15.

3. Adopted in substance in Findings of Fact 10 through 13.

4. Adopted in substance in Findings of Fact 12 and 13.

5. Adopted in substance in Findings of Fact 14 and 15.

6. Adopted in substance in Findings of Fact 16.

COPIES FURNISHED:

Ben G. Watts, Secretary Deptartment of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399-0458

Raymond R. Hanousek, pro se President

Certified Sweeping, Inc. Post Office Box 1179

Deerfield Beach, Florida 33443-1179

William H. Roberts, Esquire Deptartment of Transportation Tallahassee, Florida 32399-0450

F. Malcolm Cunningham, Jr., Esquire Reflections, Suite 400

450 Australian Avenue South West Palm Beach, Florida 33401

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: 93-003667BID

Orders for Case No: 93-003667BID