STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HUBBARD CONSTRUCTION COMPANY, )

)

Petitioner, )

)

vs. )

)

FLORIDA BOARD OF REGENTS, )

) CASE NO. 95-0904BID

Respondent. )

and )

)

AMICK CONSTRUCTION, LTD., )

)

Intervenor. )

)

RECOMMENDED ORDER

A hearing was held in this case in Orlando, Florida on March 15 and 16, 1995, before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Kevin F. Foley, Esquire

William L. Grant, Esquire Maguire, Voorhis & Wells, P.A.

2 South Orange Avenue Orlando, Florida 32801

For Respondent: Jane Mostoller, Esquire

Associate General Counsel Florida Board of Regents

325 West Gaines Street, Suite 1522 Tallahassee, Florida 32399-1950

For Intervenor: Eli Subin, Esquire

Subin, Shams, Rosenbluth, Moran, Losey & Brennan, P.A.

111 North Orange Avenue, Suite 900 Orlando, Florida 32802

STATEMENT OF THE ISSUES

The issue for consideration in this case is whether the Respondent, Florida Board of Regents, acted fraudulently, arbitrarily, illegally or dishonestly in its award of Board Project Number BR-403, for the extension of Gemini Boulevard on the campus of the University of Central Florida, (UCF), to Amick Construction, Ltd., the second lowest bidder, instead of to Petitioner, Hubbard Construction Company, the lowest bidder.

PRELIMINARY MATTERS

On January 18, 1995, the Respondent, Florida Board of Regents, (Regents), awarded the contract for the construction in issue to Amick Construction, Ltd., (Amick). Petitioner, Hubbard Construction Company, (Hubbard) filed its timely protest of the award by written notice dated January 23, 1995 and this hearing ensued. At the hearing, Hubbard presented the testimony of Roberta Weaver, a Hubbard administrative assistant; Robert J. Lindquist, its vice-president for estimating and contract administration; Earnest Wolf, its director of contract administration; Raymond Puskas, University of Central Florida's minority purchasing coordinator; Joyce Clampitt, UCF associate vice-president for administration and finance; and Peter Newman, USF director of facilities planning. Hubbard also introduced Hubbard Exhibits 1, 2, 7, 9, 11 through 19,

21, 22, 24, 26, 28, 34, 36, 37, 39, 42, 44, and 50 through 53. The Regents and Amick presented the testimony of Terri Tabor, the Regents' project administrator, and Robert Friedman, Regents' Associate Vice Chancellor and State University System architect. The Regents' Exhibits A through G, and Amick's Exhibits A through V were admitted into evidence. The parties' Joint Exhibit 1, the deposition of Susan Hodge, was also introduced into evidence.

A transcript of the proceedings was furnished. Counsel for all parties submitted Proposed Findings of Fact which have been ruled upon in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. At all times pertinent to the issues herein, the Respondent, Florida Board of Regents, was the state agency responsible for the award of major procurement and construction contracts for projects at the various state universities in Florida.

   
   

2. On October 26, 1994, the Regents issued a Project Manual requesting bids for the Gemini Boulevard Extension Project at the University of Central Florida, Contract No. BR-403 . The procurement had a Minority Business Enterprise, (MBE) goal of 21 percent of the base bid. Included within the bid documents was the provision that:

   
   

   The Bidder must ascertain that a listed MBE is certified by the DGS in the appropriate Specialty Area to perform the services for which it is listed.

   
   

3. The Bid Documents also provided that MBE's not certified with the DGS would be deleted from the calculation of the required participation of MBEs, and evidence of good faith effort in lieu of a showing of an adequate percentage of certified MBE's would be required.

   
   

4. Hubbard picked up a copy of the Bid Documents from UCF on November 23, 1994. The Bid Documents did not specify the manner in which bidders were to verify certification status of the MBE's they proposed to use, and which were listed in their bid submittals. However, at the pre-bid conference held on November 30, 1994, UCF's representative advised the prospective bidders that DMS was to be used as the source for MBE certification. Susan Hodge, a DMS employee, was identified as the person to be contacted to verify the certification status of any particular MBE. Her telephone number and name were given out at the pre-bid conference, but this information, and the suggestion that prospective bidders call Ms. Hodge, was not made a written requirement of

   the procurement. This meeting was attended by Michael Jones of Hubbard. However, regardless of the fact that the prospective bidders were given Ms. Hodge's name and number and advised to call her, only Amick did so prior to bid opening. Hubbard did not.

   
   

5. Notwithstanding the Bid Documents required DGS certification of MBEs, at the time of bidding there was no such agency. It had been replaced by the Department of Management Services, (DMS). This agency, however, does not certify MBE's. Required state certification is done by the Commission on Minority Economic and Business Development, (Commission). The terms, "Commission" and "DMS" were used interchangeably by witnesses at the hearing.

   
   

6. When the Commission took over from DGS the responsibility for maintaining the list of certified MBE's it began the periodic publishing of written listings of certified MBE's so that prospective bidders could review the list to see if a particular organization or business was certified. A copy of the list was published in December, 1994, before the bids were opened. This vendors list was not intended to be the sole source for identifying certified MBE contractors. Bidders were free to contact the appropriate agency soliciting bids to determine specific agency criteria, if any.

   
   

7. The State University System's, (SUS), Standard Practice for the Solicitation of Bids, written guidelines covering procurement practice by those entities within SUS, calls for each university to establish a geographic radius for identifying MBE's in mailing invitations to bid. This radius includes the distance which a contractor may reasonably be expected to travel to a project for which materials or supplies can be obtained on site at a competitive price. The guidelines also require each university to identify general and specialty trade units for each project; to identify MBE's consistent with the breakdown of specialty trade units within the geographic radius; and to prepare mailing lists of MBE's to which invitations to bid may be mailed.

   
   

8. These guidelines, as published, are followed by UCF's minority purchasing coordinator, Mr. Puskas, in the performance of his duties. In actuality, however, the sequence of events is somewhat different than listed above. In practice, the project architect selects the commodity and trade areas from the directory, after which he selects minority vendors listed under each appropriate commodity and trade area on lists prepared by UCF. As established, the pertinent geographic area is a five-county local area in central Florida. Certain statewide vendors are also included.

   
   

9. The final UCF list of MBE's is provided to bidders at the pre-bid conference for their use in locating MBE's. The list required by the Standard Practice guidelines is similar to that required by statute in Sections 255.102(c), and 287.0945(6)(h), Florida Statutes. In the instant case, however, because most of the MBE's on the initial list prepared for this project were of little value to prospective bidders, Mr. Puskas believed that list needed adjusting.

   
   

10. Seven bids were received for the project in issue. The bids were opened on December 14, 1994 and it was determined that Hubbard had submitted the lowest bid of $1,544,000. Second lowest bidder was Amick whose base bid was

    $1,662,821.

    
    

11. Section 1.1.1 of the Special Conditions contained in the Bid Documents required that at least 21 percent of the base bid be with certified minority business enterprises, unless the bidder could demonstrate the good faith effort

    to secure certified MBE's was made, as identified in paragraph 1.7. This requirement was incorporated in the bid proposal furnished to Hubbard.

    
    

12. Hubbard's bid included a list of five MBEs it proposed to use on this project. Included on the list was Margie Woods Trucking. The total dollar amount proposed to be expended on the MBEs was $325,000, which constitutes 21 percent of Hubbard's base bid. This list of MBE's submitted by Hubbard was on a form which contains the words, "Include only MBE's certified by the DGS."

    
    

13. When the bids were opened, and it was determined that Hubbard was the apparent low bidder, UCF procurement personnel verified that Hubbard proposal met the 21 percent MBE goal. Thereafter, Mr. Puskas placed telephone call to the Commission office in Tallahassee to determine if all MBE's listed by Hubbard in its bid were state certified. It was found that Margie Woods Trucking was no longer certified by the Commission, but was certified by the Florida Department of Transportation and by Volusia County. If Margie Woods Trucking could not be considered a properly certified MBE, Hubbard's bid would not meet the 21 percent MBE goal.

    
    

14. When this situation became apparent, Mr. Newman, UCF's director of facilities planning, telephoned Terri Tabor, the Regents' project administrator, and advised her of the problem. Ms. Tabor instructed him to request that Hubbard find a substitute MBE for Margie Woods Trucking. Ms. Tabor indicated that when she had previously worked at DMS, substitutions of MBE's was permitted "all the time." Mr. Newman commented on Hubbard's failure to verify the certification of its proposed MBEs in an E-mail communication to the UCF administration on December 14, 1994. In any event, consistent with Ms. Tabor's suggestion, at 11:25 AM on December 15, 1994, Mr. Newman telephoned Hubbard's vice-president of estimating and contract administration, Mr. Lindquist, and instructed him to submit an MBE substitute for Margie Woods within 48 hours of the bid opening. At hearing, Ms. Tabor claimed that after her first call from Mr. Newman, she called him back and advised him that substitutions would not be allowed.

    
    

15. On December 16, 1994, two days after the bid opening, Hubbard submitted its good faith effort package, along with a cover letter which provided a revised listing of its MBE's and requested that Florida Industrial Electric and C & M Jackson Trucking be substituted for Margie Woods. The value of the substitute MBE's was $51,000 and $8,000, respectively. This submittal was timely.

    
    

16. Hubbard contends that Ms. Tabor did not call back to rescind her prior comments about substitution of MBE's. However, from her testimony and the fact that Mr. Puskas, UCF's minority purchasing coordinator, indicated he knew the Regents would not accepts substitutes, it is found she did call back, and that her information was transmitted to Hubbard.

    
    

17. UCF's Minority Business Enterprise Advisory Committee met on December 19, 1994 to evaluate Hubbard's good faith effort package. The package was found to be "in compliance" with the MBE requirements of the bid documents but deficient in the areas of advertising, number of letters to MBE subcontractors or suppliers, and other documentation. In that regard, the committee determined that Hubbard should have sent letters to at least one half the MBE's on the list provided to prospective bidders. Nonetheless, the Committee considered Hubbard's substitutes even though Mr. Puskas knew such substitutes would not be and never had been accepted by the Board of Regents. It did not, however, fill

    out a good faith check list in its consideration of the package because, according to Mr. Puskas, it was satisfied Hubbard was not in compliance with the good faith effort requirements.

    
    

18. Notwithstanding this conclusion, on January 4, 1995, Mr. Newman recommended award of the contract to Hubbard. This award was for the Base Bid plus Alternate 1, for a total contract price of $1,914,000. Mr. Murray, of UCF's Small Business Development Center recommended the award only subject to a Regents' review of Hubbard's compliance with the conditions of the contract.

    
    

19. When the package was received in Tallahassee, Ms. Tabor, at the request of Mr. Newman, reviewed Hubbard's good faith effort submittal, along with the collateral documents and the MBE compliance checklist completed by UCF. She concluded that for a variety of reasons, Hubbard's good faith effort was unsatisfactory. One reason was that it did not appear that Hubbard's advertisement in the area's biggest newspaper had run for seven days prior to the bid opening, as required by paragraph 1.7.2 of the good faith effort requirements.

    
    

20. The evidence on this point presented at hearing indicated that Hubbard submitted advertisements for publication to three newspapers in the Orlando area. Hubbard submitted a letter to the Orlando Sentinel dated December 7, 1994. The Orlando Sentinel is the primary newspaper in central Florida, not the Orlando Times, a minority newspaper targeting the African-American community. However, the affidavit of publication from the Orlando Sentinel was dated December 15, 1994 and received by Hubbard sometime thereafter. Consequently, Hubbard did not have that affidavit to submit at the time it sent in its good faith effort. Accepting that the newspaper advertisements were properly placed, however, this is but one of the several bases for the Board of Regents' determination of a lack of good faith effort.

    
    

21. Others included the eleven letters sent to MBE's consistent with the requirements of Paragraph 1.7.3. In that provision, the Regents look for evidence that the bidder solicited specific trades for MBE participation, matching capabilities of MBE's solicited with the requirements of the contract. Of the eleven letters which Hubbard submitted, none but one bore dates or postal marks indicating when the letters were sent. That one letter bore date of December 6, 1994. This documentation was considered insufficient. Another basis for rejection, regarding the letters, was Ms. Tabor's conclusion that in light of the number of available MBE's in the area, in excess of 50 on the list, eleven was not a reasonable number. This is so even though many of the contractors on the list were in specialties not relevant to this project.

    
    

22. The Board also determined that Hubbard's evidence of its attempts to follow up on initial solicitations by telephone was insufficient. Hubbard admitted it did not follow up by letter. Mr. Jones, a Hubbard estimator, indicated he contacted several MBE's by telephone because it was quicker and time was short. Hubbard submitted a telephone log in support of its contention but this log was discounted as an acceptable documentation. In addition, the log was considered substantively deficient because of what appeared to be a halfhearted attempt to make contact. This conclusion is considered reasonable.

    
    

23. Another reported deficiency is the failure of Hubbard to submit information which would show it attempted to break down contracts into smaller units in order to increase the opportunity to participate by MBE's and to provide them with information sufficient to allow them to bid on time, as is required by Paragraphs 1.7.5 and 1.7.6. This point is well taken.

24. The Board also contends that Hubbard provided no evidence that, as required by Paragraph 1.7.7, it negotiated in good faith with interested MBE's. It appears that Hubbard did, in fact, produce no such evidence, nor did it offer any explanation in its cover letter. It also appears that Hubbard failed to present evidence to indicate it effectively utilized the services of available minority community organizations, contractor organizations, governmental minority business assistance officers, or other similarly directed organizations, as called for in Paragraph 1.7.8. Hubbard's testimony at hearing regarding its disagreement with the Board's appraisal was non-persuasive on this point.

    
    

25. In her evaluation of the matters submitted as Hubbard's good faith effort, Ms. Tabor did not review the telephone log submitted by Hubbard. Hubbard claims she had no idea what it did to try to verify whether the MBE's listed were certified by the commission. She did not try to obtain better copies of Hubbard's letter to MBE's seeking bids nor did she have available to her any of the state generated lists of certified MBE's to compare against Hubbard's submittal. There is some evidence that Ms. Tabor did not try to determine if Hubbard's good faith efforts were substantial or merely pro forma. She admitted at hearing she was not sure what the term "pro forma" means. In short, Ms. Tabor did not go much behind the documents submitted to her for evaluation by the Committee at UCF.

    
    

26. Nonetheless, considering all the above factors, Ms. Tabor concluded Hubbard's submittal failed to establish either that it met the 21 percent MBE goal or that it made a good faith effort to do so. She also discussed her conclusions with the Board's Director of Capital Programs and its General Counsel who concurred with her analysis that Hubbard's bid was non-responsive and should be rejected. The Chancellor accepted this evaluation and recommended award to Amick, the second low bidder.

    
    

    CONCLUSIONS OF LAW

    
    

27. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case. Section 120.57(1), Florida Statutes.

    
    

28. Section 120.53, Florida Statutes, provides that any person who is affected adversely by an agency decision on a bid solicitation may file a protest of that decision. If the protest cannot be resolved by mutual agreement within 7 days from the receipt of a formal written protest, the agency must forward the protest to the Division of Administrative Hearings for a formal hearing under Section 120.57(1), Florida Statutes. This was done here.

    
    

29. Amick contends, however, that Hubbard's notice of protest dated January 27, 1995; its formal protest dated February 3, 1995; its proof submitted in support thereof is not well grounded. Amick also contends that Hubbard's complaint that the Project manual, including the instructions to bidders, and the general and special conditions of the contract are materially defective because they fail to incorporate the requirements of Chapter 94-322, Laws of Florida, 1994, which became effective on May 31, 1994, prior to the advertisement of the invitation to bid on November 18, 1994, are not supported by the evidence. Amick further contends that Hubbard should have raised its objection to the bid requirements within 72 hours of its receipt of the bid documents on November 23, 1994, as is required by Section 120.53(5), Florida Statutes, and its failure to do so constitutes a waiver of its opportunity to

    complain and invoke the protest procedure. In light of the ultimate determination herein, resolution of this entry issue is rendered moot.

    
    

30. The burden of proof in a case such as this rests upon the unsuccessful bidder who seeks to establish that it is entitled to the award. Department of Transportation v. J.W.C. Co., Inc., 396 So.2d 778, (Fla. 1DCA 1981). As the unsuccessful bidder protesting the award to Amick, Hubbard has the burden to establish by a preponderance of the evidence that the award of this bid in issue to Amick was not the result of an honest exercise of discretion, but rather the result of fraud, illegality, oppression or misconduct. Liberty County v. Baxter's Asphalt and Concrete, 421 So.2d 505, 507 (Fla. 1982).

1. An agency has wide discretion in soliciting and accepting competitive bids, Department of Transportation v. Groves-Watkins Constructors, 530 So.2d 912 (Fla. 1988), and the Florida courts have long recognized an unsuccessful bidder's heavy burden in seeking to overturn the bid award decision of a public body. Such a decision, if based on an honest exercise of discretion, will not be overturned by a court even if it may appear erroneous and even if reasonable persons may disagree. Liberty County, supra, 421 So.2d at 507. In applying this standard, the courts have severely limited the scope of an inquiry into an agency's award decision and have determined the Hearing Officer's sole responsibility is to ascertain whether the agency acted fraudulently, arbitrarily, illegally or dishonestly. Groves-Watkins, supra, 539 So.2d at 914.

   
   

2. An agency action has been held to be arbitrary where it is not supported by facts or logic or is despotic. Agrico Chemical Company v. Department of Environmental Regulation, 565 So.2d 759, 763 (Fla. 1DCA 1989) The review for arbitrariness is limited, however. An agency's action needs to show only a rudimentary rationality to be supportable. Adam Smith Enterprises, Inc.

   1. Department of Environmental Regulation, 553 So.2d 1260, 1273 (Fla. 1DCA 1989). The Hearing Officer's review may not substitute his or her judgement for that of the agency but may insure only that the agency has used reason rather than whim in arriving at its decision. Id. at 1273.

      
      

3. The courts have long recognized the need for integrity in the procurement process utilized by government agencies. In Harry Pepper & Associates, Inc. v. City of Cape Coral, 352 So.2d 1190, 1192 (Fla. 2DCA 1977), the court in quoting from Westeer v Belote, 138 So. 721, 723-4 (1931), noted that the competitive bidding process was developed for use:

   
   

   ... to protect the public against collusive contracts; to secure fair competition upon equal terms to all bidders; to remove not only collusion but temptation for collusion and opportunity for gain at public expense; to close all avenues to favoritism and fraud in various forms; to secure the best values

   for the [public] at the lowest possible expense; and to afford an equal advantage to all desiring to do business with the [government] by affording an opportunity for an exact comparison of bids.

4. Even earlier, in Hotel China & Glassware Co. v. Board of Public Instruction of Alachua County, 130 So.2d 78, 81 (Fla. 1DCA 1961), the court stated:

   
   

   The system confers upon both the contractor and the public authority reciprocal benefits, and exacts from each of them reciprocal obli- gations. The bidder is assured fair consider- ation of his offer, and is guaranteed the contract is his if his is the lowest and best bid received. Under this system, the public authority may not arbitrarily or capriciously

   discriminate between bidders, or make the award on the basis of personal preference.

   
   

5. Under these guidelines, it can easily be seen that an agency's action will be reversed if it subverts the purpose of competitive bidding or if the agency acted arbitrarily. An agency issuing an invitation to bid must evaluate the bids received thereunder solely on the criteria stated in the invitation. If appropriate criteria have been applied and utilized in the evaluation of submitted bids, a Hearing Officer need not second guess the agency to determine whether he and/or other reasonable and well-informed persons might have reached a different result. Scientific Games, Inc. v. Dittler Brothers, Inc., 586 So.2d 1128 (Fla. 1DCA 1991).

   
   

6. In the instant case, Hubbard claims that after having indicated, at least unofficially, that its bid was lowest and best and that the proposed substitution for the non-certified MBE was acceptable, the Regents acted arbitrarily, illegally and irresponsibly in rejecting Hubbard's bid and awarding the contract to Amick. It further contends that the Regent's requirement that bidders meet all criteria in its good faith check list is arbitrary and, therefore, unlawful. To the contrary, the Regents' change in position was not an arbitrary, capricious, illegal or irresponsible action, but a decision based upon a more thorough analysis of the facts and an application of pertinent legal authorities and principles.

   
   

7. The evidence introduced in this case shows that Hubbard signed the bid proposal form and agreed to be bound by the MBE requirements set out in the project manual. It also shows that all prospective bidders who attended the

   pre-bid conference were advised to call the Commission to verify MBE status. Though this was done orally rather than as a part of the bid requirements of the amendments thereto, it was not an arbitrary requirement.

   
   

8. Hubbard, which had successfully won numerous bids with the State of Florida appears to have relied upon its knowledge of general procedures in this particular procurement. Though advised that the MBS's to be used on this project must be certified by DMS, now the Commission, it nonetheless chose to ignore that requirement and submit an MBE certified by another agency. This is not to say that Margie Woods Trucking could not or would not have done an appropriate job. The fact is, however, that Margie Woods Trucking was not, at the time of the bid submittal, certified by that agency stipulated as required in the bid documents. Hubbard was made aware of what it had to do to insure its MBE subcontractors were properly certified, and nonetheless refused to do so.

   
   

9. Hubbard seems to confuse the suggestion to call the Commission to verify MBE certification with the requirement to use DMS certified MBEs. The fact that only one bidder called the Commission prior to bid opening is not

   pertinent to the issue here. The fact is that the lowest bidder, Hubbard, did not meet the 21 percent MBE goal with subcontractors certified as required by the Regents, and that determination by the Regents is not arbitrary.

   
   

10. In addition, Hubbard's submittal of the two substitutes for Margie Wood Trucking was not accomplished until two days after the bid opening. Section 255.0515, Florida Statutes, prohibits the removal or replacement of subcontractors listed in the bid subsequent to the lists being made public at

    the bid opening, except upon a showing of good cause. Hubbard could not offer a good cause for late substitution other than that it failed to check the certification status of its subcontractors with the Commission even though it was advised to do so. The Board's determination that the substitutions were not acceptable was neither illegal nor arbitrary, considering the statute just noted and the pertinent case law on the subject. See E.M. Watkins & Co. v. Board of Regents, 414 So.2d 583 (Fla. 1DCA 1982); D.E. Wallace v. Board of Regents, DOAH Case No. 89-6844.

    
    

11. Considering that Hubbard's bid did not meet the 21 percent MBE goal, the issue next for resolution is whether Hubbard made a good faith effort to meet that goal. The Regents concluded that it did not. In her evaluation of Hubbard's submittal regarding its good faith effort to meet the MBE goal, Ms. Tabor concluded that the absence of the published advertisement, when coupled with the fact that only two of the three advertisements were placed more than seven days prior to bid opening, was not an acceptable effort. She also concluded that there was insufficient evidence, from the written solicitations sent to prospective subcontractors, to ascertain whether those subcontractors received the information in a time sufficient for them to reasonably participate.

    
    

12. Ms. Tabor also concluded that the number of letters sent out to prospective subcontractors was too low when the population size of the area is considered, and, in addition, the phone log to support Hubbard's claims of repeated follow-up to the letters sent was inadequate. Review of the documentation submitted supports these conclusions.

    
    

13. Hubbard contends that the Regents' requirement that all criteria on its good faith checklist be met is arbitrary. In essence, it claims that "good faith" is a term of art which must be determined from a review of all the pertinent evidence regarding the effort, rather than a mere compliance with a standard checklist. Assuming, arguendo, that Hubbard is correct in its definition, the evidence, as outlined above, and as considered by the Regents, would seem to support the Regents' determination. Clearly, under the circumstances shown, the Regents' determination that Hubbard did not meet the 21 percent MBE goal, and could not show a good faith effort to make that goal, constituted a determination of non-responsiveness which has not been shown to be either illegal or arbitrary.

    
    

14. The Regents' MBE program is not a minor technicality that can be waived to permit award to a lower non-responsive bidder. Section 287.0945(1), Florida Statutes, provides a clear picture of the intent of the Legislature regarding that subject. It states:

    
    

    It is determined to be a compelling state interest to rectify such discrimination and disparity.... The purpose and intent of the section is to increase participation by [MBE's] in the State procurement system. This purpose

    will be accomplished by encouraging the use of MBEs and the entry of new and diversified

    minority business enterprises into the marketplace.

    
    

15. Clearly, the Regents' compliance with the letter and intent of this legislation in its procurement activities is consistent with its purpose and based upon competent evidence, and the disqualification of Hubbard as a responsive bidder in this procurement was not fraudulent, arbitrary, illegal or dishonest.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore:

RECOMMENDED that the Board of Regents enter a Final Order in this case awarding BR-403 to Amick Construction, Ltd.

RECOMMENDED this 31st day of May, 1995, in Tallahassee, Florida.

ARNOLD H. POLLOCK, 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 31st day of May, 1995.

APPENDIX TO RECOMMENDED ORDER

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case.

FOR THE PETITIONER:

1. - 4. Accepted and incorporated herein.

5. - 7. Accepted and incorporated herein.

1. - 11. Accepted.

   1. Accepted and incorporated herein.

   2. Accepted and incorporated herein.

   3. & 15. Accepted and incorporated herein.

      1. Accepted.

      2. Not a Finding of Fact but a statement of law.

      3. Accepted.

      4. Accepted and incorporated herein.

      5. - 22. Accepted and incorporated herein.

         1. Not a Finding of Fact but a restatement of the contents of a document received in evidence.

         2. Not a Finding of Fact but a comment on the evidence. The conclusion of mistake was not proven.

            25.	-	27.	Accepted and incorporated herein.
            		28.	Rejected as contra to the better weight of the
            			evidence.
            29.	&	30.	First paragraph and first sentence of second paragraph
            			accepted and incorporated herein. Second sentence of
            			second paragraph rejected as not supported.
            31.	-	33.	Accepted and incorporated herein.
            		34.	First sentence accepted. Second sentence rejected as
            			not supported.
            		35.	Accepted and incorporated herein.
            36.	&	37.	Accepted.
            		38.	Accepted that the request for publication was
            			submitted in advance of the bid opening but that
            			request does not establish the ad was run. The
            			affidavit dated December 15 was executed after the
            			bids were opened and was not available to the UCF
            			Committee on time.
            		39.	Accepted.
            40.	&	41.	Accepted.
            		42.	First sentence accepted. Second sentence rejected as
            			an effort to transfer the burden of proof.
            43.	&	44.	Accepted and incorporated herein.
            45.	&	46.	Accepted and incorporated herein.
            47.	&	48.	Accepted and incorporated herein.
            49.	&	50.	Accepted and incorporated herein.
            51.	-	53.	Accepted.
            54.	&	55.	Accepted.
            		56.	Irrelevant.
            57.	&	58.	Accepted.
            		59.	Accepted.
            60.	-	63.	Accepted.
            		64.	Not proven.
            65.	&	66.	Accepted.
            		67.	Accepted and incorporated herein.
            		68.	Accepted but not persuasive.
            69.	&	70.	Accepted, but as to 70, there is no evidence of how
            			this is done.
            71.	-	73.	Accepted.
            74.	&	75.	Irrelevant.
            76.	&	77.	Accepted but information and opinion expressed in 77
            			is irrelevant to the issue in this matter.
            78.	&	79.	Accepted.
            80.	&	81.	Accepted.
            		82.	Accepted but not determinative of any issue.
            83.	&	84.	Accepted.
            		85.	Accepted and incorporated herein.
            		86.	Accepted and incorporated herein.
            87.	&	88.	Accepted.
            89.	&	90.	Not Findings of Fact but Conclusions of Law.

            FOR THE RESPONDENT:

            
            

            1. Accepted.

            2. - 6. Accepted and incorporated herein.

7. & 8. Accepted.

FOR THE INTERVENOR:

1. & 2. Accepted and incorporated herein.

3. & 4. Accepted.

1. & 6. Accepted and incorporated herein.

   1. Accepted.

   2. - 12. Accepted and incorporated herein,

      1. Accepted.

      2. Accepted.

      3. Accepted and incorporated herein.

      4. - 18. Accepted and incorporated herein.

19. - 21. Accepted and incorporated herein.

22. - 29. Accepted and incorporated herein.

30. & 31. Accepted.

32. Accepted and incorporated herein.

COPIES FURNISHED:

Kevin F. Foley, Esquire William L. Grant, Esquire Maguire, Voorhis & Wells, P.A. Two South Orange Plaza Orlando, Florida 32801

Jane Mostoller, Esquire Florida Board of Regents

325 West Gaines Street, Suite 1522 Tallahassee, Florida 32399-1950

Eli H. Subin, Esquire

Subin, Shams, Rosenbluth, Moran, Losey & Brennan, P.A.

111 North Orange Avenue, Suite 900 Post Office Box 285

Orlando, Florida 32802

Frank T. Brogan Commissioner of Education The Capitol

Tallahassee, Florida 32399-0400

Barbara J. Staros General Counsel Department of Education The Capitol, PL-08

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 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the agency which will issue the Final Order in this case concerning its rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency which will issue the Final Order in this case.

Docket for Case No: 95-000904BID

Orders for Case No: 95-000904BID