STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BEACH CONSTRUCTION COMPANY, INC., )

)

Petitioner, )

)

vs. ) Case No. 97-3309BID

)

DEPARTMENT OF CORRECTIONS, )

)

Respondent. )

)

and )

)

SHAW CONSTRUCTION AND )

MANAGEMENT SERVICES, INC. )

)

Intervenor. )

)

RECOMMENDED ORDER

Upon due notice, William R. Cave, Administrative Law Judge, Division of Administrative Hearings, held a formal hearing in this matter on August 13, 1997, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Donna P. Beach

Qualified Representative

Beach Construction Company, Inc. 4554 Southwest 41st Boulevard Gainesville, Florida 32608

For Respondent: Daniel Te Young, Esquire

Department of Corrections 2601 Blair Stone Road

Tallahassee, Florida 32399-2500

For Intervenor: Terry L. Shaw

Shaw Construction and Management Services, Inc.

386 Pine Tree Road

Lake Mary, Florida 32746

STATEMENT OF THE ISSUE

Is the Department of Corrections' proposed award of Project SK-25-WW to Shaw Construction and Management Services, Inc., contrary to the Department's governing statutes, rules or policies, or the bid or proposal specifications?

PRELIMINARY MATTERS

On April 4, 1997, the Department of Corrections (Department) advertised Project SK-25-WW (Project) for bid in the Florida Administrative Weekly. Shaw Construction and Management Services, Inc. (Shaw) submitted the lowest bid of $279,000.

Petitioner, Beach Construction Company, Inc. (Beach) submitted the second lowest bid of $297,000. The Department notified the bidders of its intent to award the contract to Shaw.

Beach timely filed a formal written protest on June 10, 1997, which was referred to the Division of Administrative Hearings (Division) on July 18, 1997, for the assignment of an Administrative Law Judge and the conduct of a hearing.

At the hearing, Beach made an opening statement but did not present any testimony. Beach's Exhibits One and Two were received as evidence. The Department presented the testimony of Clayton Campbell and Terry Shaw. Department's Exhibits One through Four were received as evidence. By agreement of the parties, the transcript of Timothy A. Hochuli's deposition taken on August 19, 1997, was received as evidence in lieu of his live

testimony at the hearing. Joint Exhibit One was received as evidence.

A transcript of this proceeding was filed with the Division on August 18, 1997. A transcript of Timothy A. Hochuli's deposition was filed with the Division on September 5, 1997. The parties' request that the time to file their proposed findings of fact and conclusions of law be extended until September 19, 1997, was granted. The parties timely filed their proposed findings of fact and conclusions of law under the extended time frame.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made:

1. In April 1997, the Department advertised for bids for construction of wastewater treatment plant upgrades at Polk Correctional Institution (Project).

2. The engineering firm of Hartman and Associates, Inc. (Hartman) was the Department's professional consultant on the Project and was responsible for designing, permitting, bidding, and construction supervision. Hartman's project manager was Timothy Hochuli.

3. In April 1997, after the Project Manual was completed and ready for distribution, Hochuli furnished Clayton Campbell, the Department's project manager, a copy of the advertisement for publication in the Florida Administrative Weekly, the official

   publication for projects that are bid by the Department. The copy of the advertisement furnished to Campbell indicated that a pre-bid conference was mandatory.

4. After some discussion between Hochuli and Campbell, it was decided that the advertisement would not contain the requirement for a mandatory pre-bid conference but only that there would be a pre-bid conference. Thereafter, the advertisement was placed in the Florida Administrative Weekly without the mandatory pre-bid conference requirement.

5. Hochuli did not delete the requirement for a mandatory pre-bid conference in the Project Manual, notwithstanding the advertisement in the Florida Administrative Weekly to the contrary. However, Campbell assumed that the requirement for a mandatory pre-bid conference had been removed from the Project Manual, and acted on that assumption until advised otherwise by Beach after the bid opening.

6. The Advertisement for Bids that was placed in the Florida Administrative Weekly included the following relevant paragraphs:

   PROPOSALS: Bids must be submitted in full accordance with the requirements of the Drawings, Specifications, Bidding Conditions and Contractual Conditions, which may be examined and obtained from the: ARCHITECT/ENGINEER: HARTMAN & ASSOCIATES, INC.,. . . .

   
   

   * * *

   
   

   PRE-BID CONFERENCE: A pre-bid conference will be held on April 15, 1997 at the

   Administrative Building Conference Room at the Polk Correctional Institution.

   
   

7. The Bidding Conditions were included in the Project Manual which was issued by Hartman. Section A of the Project Manual entitled "Advertisement for Bid" includes the following paragraph:

   PRE-BID CONFERENCE: A mandatory pre-bid conference will be held on April 15, 1997, 10:30 a.m. at the Administrative Building Conference Room at the Polk Correctional Institution.

   
   

8. There was no reference to a pre-bid conference in Section B of the Project Manual entitled "Instruction to Bidders" or any other part of the Project Manual.

9. Shaw learned of the Project through the April 10, 1997, Dodge Reports, a trade journal that publishes construction projects, which did not list the pre-bid conference as being mandatory. However, at least one other trade journal listed the pre-bid conference as being mandatory.

10. The pre-bid conference was held as scheduled on April 15, 1997. All bidders, with the exception of Shaw, were represented at the pre-bid conference.

11. At the pre-bid conference, Campbell and Hochuli gave an overview of the project, discussed concerns specific to the project and prequalification requirements, and answered questions. Certain questions were answered in an addendum to the Project Manual. A site visit, a requirement specified in the Project Manual, was also conducted by Campbell and Hochuli.

Although Shaw did not attend this site visit, Shaw did make a site visit prior to submitting its proposal in accordance with paragraph B-9 of the Project Manual.

12 Shaw ordered the Project Manual from Hartman on April 21, 1997. After receiving the Project Manual, Shaw noticed that the pre-bid conference was mandatory. Shaw then contacted Hartman to determine if Shaw could bid on the Project since it had not attended the pre-bid conference on April 15, 1997. Shaw was advised by Hartman that it could submit a bid. Shaw did not request, nor did the Department or Hartman make an addendum to the Project Manual concerning the mandatory pre-bid conference.

1. Beach, Shaw, and four others submitted bids on the Project which were opened at 11:30 a.m. on April 25, 1997. Shaw was the lowest bidder at $279,000, with Beach being the second lowest bidder at $297,000.

2. Hochuli reviewed Shaw's bid; and based on Shaw's familiarity with similar projects of similar size, work references, and financial information, determined that Shaw could do the work required by the Project Manual, and thus recommended that the Department award the Project to Shaw.

3. On June 6, 1997, the Department issued notice that it intended to award the contract to Shaw as the lowest responsive bidder.

4. Beach, the apparent second lowest responsive bidder, timely submitted a notice of protest and a formal written

   protest, contending that Shaw was not a responsive bidder, in that Shaw had not attended the pre-bid conference.

5. There is no evidence that Shaw's failure to attend the pre-bid conference affected the price of the bid, or gave Shaw an advantage or benefit not enjoyed by other bidders, or adversely impacted the interest of the Department.

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding pursuant to Section 120.57(1) and (3), Florida Statutes.

7. Section 1209.57(3)(f), Florida Statutes, provides in pertinent part as follows:

   (f). . . Unless otherwise provided by statute, the burden of proof shall rest with the party protesting the proposed agency action. In a competitive-procurement protest, other than a rejection of all bids, the administrative law judge shall conduct a de novo proceeding to determine whether the agency's proposed action is contrary to the agency's governing statutes, the agency's rules or policies, or the bid or proposal specifications. The standard of proof for such proceedings shall be whether the proposed agency action was clearly erroneous, contrary to competition, arbitrary, or capricious. . . . (emphasis furnished)

   There is no statute providing to the contrary; therefore, the Petitioner has the burden of proof in this matter.

8. Clearly, the Project Manual provided for a mandatory pre-bid conference. Equally as clear is that the Department's intent was to delete this requirement as is shown by the advertisement for bid placed in the Florida Administrative Weekly and the discussion between Campbell and Hochuli. However, assuming arguendo that attendance at the pre-bid conference was a prerequisite for bidding on the Project, the Department may waive that requirement if it is determined to be a minor irregularity.

See Tropabest Foods, Inc. vs. Department of General Services,

493 So. 2d 50 (1st DCA Fla. 1986); Robinson Electric Company Inc. vs. Dade County, 417 So. 2d 1032(3rd DCA Fla. 1982); Harry Pepper and Associates vs. City of Cape Coral, 353 So. 2d 1190 (2nd DCA Fla. 1978). A minor irregularity is a variation from the bid specifications which does not affect the price of the bid, or give the bidder an advantage or benefit not enjoyed by other bidders or does not adversely impact the interests of the agency. Tropabest, 493 So. 2d at 52; Robinson, 417 So. 2d at 1034; Pepper, 352 So. 2d at 1193. From the record, it is clear that Shaw's failure to attend the pre-bid conference was a minor irregularity which the Department chose to waive. Petitioner has failed to meet its burden of proof.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the protest of Petitioner Beach Construction Company, Inc., be dismissed.

DONE AND ENTERED this 13th day of October, 1997, in Tallahassee, Leon County, Florida.

_ WILLIAM R. CAVE

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6947

Filed with the Clerk of the Division of Administrative Hearings this 13th day of October, 1997.

COPIES FURNISHED:

Harry K. Singletary, Jr. Secretary

2601 Blair Stone Road Tallahassee, Florida 3399-2500

Louis A. Vargas General Counsel

2601 Blair Stone Road Tallahassee, Florida 32399-2500

Donna P. Beach

Qualified Representative

Beach Construction Company, Inc. 4554 Southwest 41st Boulevard Gainesville, Florida 32608

Daniel Te Young, Esquire Department of Corrections 2601 Blair Stone Road

Tallahassee, Florida 32399-2500

Terry L. Shaw

Shaw Construction and Management Services, Inc.

386 Pine Tree Road

Lake Mary, Florida 32746

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 97-003309BID

Orders for Case No: 97-003309BID