STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MURTON ROOFING CORP., )

)

Petitioner, )

)

vs. ) CASE NO. 94-6916BID

) THE SCHOOL BOARD OF DADE COUNTY, ) FLORIDA, )

)

Respondent. )

and )

)

A-1 DURAN ROOFING, INC., )

)

Intervenor. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Susan B. Kirkland, held a formal hearing in this case on January 27, 1995, in Tallahassee, Florida.

APPEARANCES

For Petitioner: David Elder, Esquire

Vincent Vaccarella, Esquire Elder & Kurzman, P.A.

Grand Bay Plaza, Suite 702 2665 South Bayshore Drive Coconut Grove, Florida 33133

For Respondent: Phyllis O. Douglas, Esquire

School Board of Dade County

1450 Northeast 2nd Avenue, Suite 301

Miami, Florida 33132

For Intervenor: Steven M. Rosen, Esquire

5601 Building

5601 Biscayne Boulevard

Miami, Florida 33137 STATEMENT OF THE ISSUES

Whether Respondent properly rejected the bid of Petitioner on Project No.

KS-0004.

PRELIMINARY STATEMENT

Respondent, School Board of Dade County (School Board), advertised for bids for Project No. KS-0004 Roof Repair/Replacement and Asbestos Removal at American

Senior High School. Petitioner, Murton Roofing Corporation (Murton), submitted a bid. The School Board advised Murton that the apparent low bidder was deemed nonresponsive and requested Murton to submit letters of intent from its Minority/Women Business Enterprise (M/WBE) subcontractors for review for compliance with the special provisions for M/WBE Assistance. On October 21, 1994, the School Board issued a final notice of noncompliance to Murton stating that Murton's proposed subcontractor was not certified as a M/WBE by the Dade County Public Schools/Division of Business Development and Assistance (DBDA).

Murton requested an administrative hearing and the case was forwarded to the Division of Administrative Hearings for assignment to a hearing officer.

A-1 Duran Roofing, Inc. (Duran) petitioned to intervene in the proceedings and the petition was granted.

At the final hearing Murton presented Rose-Barefield Cox and Fredric Nagler as witnesses. Petitioner Exhibits 1 and 2 were admitted in evidence. Joint Exhibits 1-18 were admitted in evidence. The School Board called Rose-Barefield Cox as its witness. Duran did not present any witnesses.

No transcript was filed. The parties agreed to submit proposed recommended orders on or before February 6, 1995. The parties timely filed proposed recommended orders. Duran joined in the proposed recommended order filed by the School Board. The parties' proposed findings of fact are addressed in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. On August 22, 29, and September 5, 1994, Respondent, School Board of Dade County (School Board), advertised for bids for Project No. KS-0004, Roof Repair/Replacement and Asbestos Removal at American Senior High School. The advertisement stated that "The mechanical and electrical trades have been set aside to be performed by a minority-owned and operated firm." The advertisement made no mention of any requirement that the set-asides were to be performed by minority-owned and operated firms certified by Dade County Public School/Division of Business Development and Assistance (DBDA).

   
   

2. The bid and contract documents which were delivered to all interested bidders including Petitioner, Murton Roofing Corporation (Murton), contained page 00030-2 providing various definitions, including the definition of "minority owned and operated business participation" as follows:

   
   

   MINORITY OWNED AND OPERATED BUSINESS

   PARTICIPATION - This bid is limited to

   those individuals and businesses (51 percent) owned and controlled by African-American, Hispanics, and Women which are so listed by the Dade County Public Schools/Division of Business Development & Assistance prior to bidding, or to provide sufficient data to verify and certify such ownership and control at the time of the bid. Award will be made to the low bidder meeting this and other project specifications and requirements.

   
   

   Page 00030-2 had been included in the project specifications section dealing with legal advertisements. By addendum issued September

   8, 1994, the School Board deleted this page from the bid documents.

   
   

3. Section I A of the Special Provisions, page 1 defines Minority/Women Business Enterprises as follows:

   
   

   Any legal entity which is organized to engage in commercial transactions and which is at least 51 percent owned and controlled by minority persons. Minority person means

   a person who is a citizen or lawful permanent resident of the United States and who is:

   1. An African American, a person having

      origins in any of the black racial groups of Africa;

   2. An hispanic, a person of Spanish or Portuguese culture including, but not limited

      to persons with origins in Mexico, South America, Central America or the Caribbean Islands regardless of race.

   3. A woman.

      
      

4. The Project Manual defines a "M/WBE Certification Application" as a "statement signed by an M/WBE contractor, containing certain information with respect to the ownership and control of the firm (See Attachment B-FM 3920)." Page 16 of the Project Manual states that "[a]t any time there is a change in ownership or control of the firm, the M/WBE shall, immediately following the change, submit a new M/WBE Certification Application."

   
   

5. Page 2 of Section 1 A of the Special Provisions provides:

   
   

   A subcontractor is qualified to do specific work if it meets all of the following criteria:

   1. It has or is able to obtain any and all bonds, insurance and licenses required to do such work;

   2. It has the necessary experience, financial ability, organization, technical qualifications, skill and facilities to do such work;

   3. It is able to comply with the performance schedule reasonably needed for such work;

   4. It does not have an unsatisfactory record of integrity, judgment or performance;

   5. It is able to meet the applicable equal employment opportunity requirement if stipulated; and

   6. It is not otherwise ineligible to perform such work under applicable law and regulations.

   
   

   Nothing delineated herein shall be interpreted to waive the requirement that the Subcontractor be legally licensed and certified at the time it is scheduled to perform such work.

   
   

6. Section III, titled Bid Documents, Section III A, Submittals, states:

   
   

   As a condition of responsiveness, all bid submittals shall contain the documents and

   information required below. Non-submittals or incomplete submittals shall be cause for finding a Bidder nonresponsive and for the contract not to be awarded to the Bidder.

   Failure to submit completed forms and other required information, within the time period specified, can neither be cured by supplementary submittals and testimony at hearings, nor shall the nonresponsiveness of the bid be waived, negotiated or compromised.

   
   

7. In its bid, Murton listed Goral Enterprises (Goral) as the subcontractor for the mechanical work on the project. Murton indicated on the subcontractor list that Goral was a woman business enterprise. At the time that Murton submitted its bid, Goral was not certified as a M/WBE by DBDA and Murton did not submit with its bid an application from Goral for certification as a M/WBE by DBDA. Goral was certified as a Disadvantaged Business Enterprise (DBE) by Metropolitan Dade County's Department of Business and Economic Development. Murton relied on Goral's DBE certification to met the M/WBE requirements of the project specifications.

   
   

8. The DBE program is a separate program from the School Board's M/WBE program. The School Board does not give reciprocity to contractors who are certified as DBE's for acceptance in the School Board M/WBE program. Goral had been denied certification as an MBE by the Commission on Minority Economic and Business Development approximately two weeks prior to Murton submitting its bid for the project. The project specifications do not state that a contractor certified as a DBE will be deemed to meet the criteria of a M/WBE.

   
   

9. Intervenor, A-1 Duran Roofing, Inc., also submitted a bid on the project; however, its bid was rejected as nonresponsive.

   
   

10. By letter dated October 13, 1994, the School Board advised Murton that it was not in compliance with the special provisions of the project specifications because Goral was neither certified as a M/WBE nor had certification pending; therefore Goral could not be used to meet the M/WBE requirements for the mechanical work on the project.

    
    

11. By letter dated October 14, 1994, Murton requested a meeting with the Contract Administrator to discuss the Notice of Noncompliance issued the day before. A meeting was held on October 18, 1994. On October 21, 1994, the School Board issued a Final Notice of Noncompliance. On October 26, 1994, the School Board issued a Revised Final Notice of Noncompliance, wherein it inaccurately stated that the legal advertisement required that the M/WBE's be certified by the DBDA at the time of submittal or that the bid submittal contain sufficient data to verify and certify M/WBE qualification. However, the Revised Final Notice of Noncompliance also stated that the bid document when read as a whole required that the M/WBE be either certified or pending certification at the time of bid submittal or that a certification application be submitted with the bid. The notice stated that Goral did not meet the requirements of the bid documents for a M/WBE.

    
    

12. Murton requested an appeals hearing before the Certification Appeals Committee (Committee). The hearing was convened on October 26, 1994, at which time it became apparent to the Committee that the October 21, 1994 letter contained an error in that the paragraph stating that M/WBE's must be certified by the DBDA prior to bidding or provide sufficient data to verify or certify

    such ownership and control at the time of bid had not in fact appeared in the advertisement and the second page of the advertisement in the project manual which represented that this language had been a part of the advertisement had been removed by addendum.

    
    

13. The meeting was recessed in order to review and obtain clarification of documentation presented by Murton. The Committee reconvened on November 15, 1994. At that time, upon reviewing the project manual and other documentation, the Committee determined that the language remaining in the Project Manual, read as a whole, did require DBDA certification and voted to uphold the determination of noncompliance.

    
    

14. The School Board has interpreted similar project specifications to require that the proposed M/WBE be certified by DBDA at the time of bid submittal or that the bidder submit sufficient data with the bid to be able to determine whether the entity qualifies as a M/WBE. Such data is to be submitted on the application form contained in the project specifications as Attachment B- FM 3920, which is the form used by DBDA for application for certification as a M/WBE. The School Board has on numerous occasions rejected bidders for failure to submit either currently certified M/WBE's as subcontractors or for failure to submit an application for DBDA certification for the subcontractor with the bid.

    
    

15. School Board Rule 6Gx13-3G-1.02 delineates the objectives for its M/WBE program. The rule states that the program's objectives may be accomplished by affirmative actions which include set aside contracts, subcontracting goals, prime contracting and designated scopes of work. In the instant case the School Board had designated certain portions of the work of the project to be performed by M/WBE firms.

    
    

16. School Board Rule 6Gx13-3G-1.02 IV. provides:

    
    

    In order to ensure that business firms seeking to participate in the M/WBE Program

    are at least fifty-one (51) percent legitimately owned, operated and controlled by minorities, each M/WBE firm shall be required to be certified as to its minority ownership at the time of each bid award. Such certification shall be on the

    basis of a completed M/WBE Certification Application with supporting documentation, submitted by the firm, sworn to by an officer of the firm, invest- igated and verified by the Division of Business Development and Assistance, prior to any contract award.

    
    

17. The School Board desires to rebid the project. On January 9, 1995, the School Board placed a new legal advertisement for bid on the project, specifically indicating that it would require and accept only DBDA certified M/WBE's.

    
    

    CONCLUSIONS OF LAW

    
    

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

19. Murton has standing to bring this protest and Duran has standing to intervene in this proceeding.

    
    

20. The Florida Supreme Court in Department of Transportation v. Groves- Watkins, 530 So.2d 912 (Fla. 1988) set forth the role of the hearing officer in the review of an agency's decision to award or reject all bids.

    
    

    Thus, although the APA provides the procedural mechanism for challenging an agency's decision to award or reject all bids, the scope of the inquiry is limited to whether the purpose of the competitive bidding has been subverted.

    In short, the hearing officer's sole respon- sibility is to ascertain whether the agency acted fraudulently, arbitrarily, illegally, or dishonestly.

    
    

    Id. at 914.

    
    

21. In Liberty County v. Baxter's Asphalt and Concrete, 421 So.2d 505, 507 (Fla. 1982), the court noted the strong judicial deference accorded an agency's decision in competitive bidding situations:

    
    

    1. 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 erroneous and even if reasonable persons may disagree.

       
       

       Id. at 507.

       
       

22. Murton has failed to establish that the School Board's decision to reject all bids, including Murton's, is arbitrary, fraudulent, illegal, or dishonest. It was the School Board's intent that contracts which are awarded and which call for M/WBE participation require that the W/MBE be certified through the School Board's M/WBE program. For some reason the advertisement for bids omitted the language which was generally used to denote the requirement for DBDA certification. The evidence did not establish that for the project at issue the School Board had made a decision to delete the requirement for DBDA certification.

    
    

23. Although page 00030-2 was deleted by addendum, none of the other language in the project manual concerning W/MBE participation was deleted. The requirement that a M/WBE contractor resubmit a M/WBE Certification Application when there was a change in ownership or control remained in the project manual. This requirement is evidence that the School Board did intend that the mechanical subcontractor be certified by the DBDA.

    
    

24. The bid documents do not clearly set out the requirement for DBDA certification or the submission of a DBDA M/WBE Certification Application with the bid submittal. The bid documents are ambiguous as to the M/WBE requirement. Thus, the bid documents are flawed because they do not clearly set forth the intentions of the School Board concerning the M/WBE requirement. Because the bid documents are flawed, the School Board appropriately elected to reject all bids and issue bid documents which accurately and clearly set forth the M/WBE requirements for the project.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered dismissing the Murton Roofing

Corporation's Petition and rejecting all bids for the project and rebidding the project.

DONE AND ENTERED this 1st day of March, 1995, in Tallahassee, Leon County, Florida.

SUSAN B. KIRKLAND

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 1st day of March, 1995.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-6919

To comply with the requirement of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact:

Petitioner's Proposed Findings of Fact.

1. Paragraphs 1-5: Accepted in substance.

2. Paragraph 6: Accepted that Goral was certified as a DBE but rejected that DBE certification meant that Goral was qualified as a M/WBE.

3. Paragraphs 7-11: Accepted in substance.

4. Paragraph 12: Accepted that that portion was deleted, but rejected to the extent that it implies that section was the only portion of the bid documents relied upon by the School Board.

5. Paragraphs 13-15: Rejected as not necessary.

6. Paragraph 16: Accepted in substance.

7. Paragraph 17: Rejected as constituting argument.

8. Paragraph 18: Accepted to the extent that that was his testimony.

9. Paragraphs 19-22: Accepted in substance.

10. Paragraphs 23-24: Rejecting as constituting argument.

11. Paragraphs 25-26: Rejected as subordinate to the facts actually found.

12. Paragraph 27: Rejected as constituting argument.

13. Paragraph 28: There is no paragraph 28.

14. Paragraph 29: Rejected as constituting argument.

15. Paragraphs 30-31: Rejected as not supported by the greater weight of the evidence.

Respondent's Proposed Findings of Fact.

1. Paragraphs 1-3: Accepted in substance.

2. Paragraph 4: The first two paragraphs are rejected as unnecessary. The remainder is accepted in substance.

3. Paragraphs 5-10: Accepted in substance.

4. Paragraphs 11-12: Rejected as constituting argument.

5. Paragraph 13: Rejected as subordinate to the facts actually found.

6. Paragraph 14: The first sentence is rejected as constituting argument. The second sentence is accepted in substance.

COPIES FURNISHED:

Vincent F. Vaccarella, Esquire Elder & Kurzman

Grand Bay Plaza, Suite 702 2665 South Bayshore Drive Coconut Grove, Florida 33133

Phillis O. Douglas Board Attorney

Dade County Public Schools

School Board Administration Building 1450 Northeast Second Avenue

Miami, Florida 33132

Steven M. Rosen, Esquire 5601 Building

5601 Biscayne Boulevard

Miami, Florida 33137

Octavio J. Visiedo, Superintendent Dade County School Board

1450 Northeast Second Avenue, #403

Mimai, Florida 33132-1308

Frank T. Brogan Commissioner of Education The Capitol

Tallahassee, Florida 32399-0400

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 ten 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: 94-006916BID

Orders for Case No: 94-006916BID