The Issue Whether the Department arbitrarily evaluated the bids submitted for State Job No. 10120-3522, or reviewed the bids in any manner that was fraudulent, illegal or dishonest. Whether the Department should set aside its notice of intent to award and rebid the contract. Whether Petitioner Kelly Brothers or Intervenor Tom Quinn was the lowest responsive bidder instead of Intervenor Hubbard, the prime contractor named in the notice of intent to award.
Findings Of Fact State Job No. 10120-3522 is a road construction project on State Road 674 that begins east of US 301 and ends at Pierce Bridge in Hillsborough County. The Department solicited for bids on the work and established June 19, 1991, as the date project bids were due. As part of the bidding documentation, prime contractors who submitted bids were required to use the bid blank issued by the Department for that purpose. In addition, prime contractors had to certify that they understood the Disadvantaged Business Enterprise (DBE) goal for the project was 11 percent of the total dollar amount bid for the project. All of the parties to this bid protest certified that they understood the DBE goal for this project. The 11 percent DBE goal was a bid specification that was not timely challenged through the bid solicitation protest process within 72 hours of receipt of project plans and specifications. Bidders who were unable to fully comply with the contract DBE goal were required to demonstrate good faith efforts had been made to meet the DBE goal. The means used by the Department to evaluate the good faith efforts were set forth in Rule 14-78.003, Florida Administrative Code, and the bid specifications. Kelly Brothers submitted the low bid on this project with the total project bid of $2,311,322.78. The dollar amount for the DBE goal listed on the DBE Utilization Form completed by Kelly Brothers was $205,989.12. The multiplication of this sublet amount into the project bid shows that Kelly Brothers achieved only 8.91 percent of the 11 percent DBE goal. To support its good faith efforts to meet the DBE goal, Kelly Brothers noted on the DBE Utilization Form that bid quotes were solicited from eleven certified DBEs on the project. It was further represented that seven of those contacted responded to Kelly Brothers' request, and two were actually used in the project bid submitted to the Department. Documentation of these good faith efforts as set forth in Rule 14- 78.003, Florida Administrative Code, and the bid specifications were not submitted with the bid. Instead, the DBE Utilization Form filed by Kelly Brothers simply stated, "Telephone log will be submitted if necessary." During the bid protest proceeding, Kelly Brothers supplied evidence of price quotes received from one DBE. This subcontractor was not listed on bid documents and the quotes were not included in the bid. Tom Quinn submitted the next lowest total project bid of $2,406,167.54. The dollar amount listed for DBE participation on the DBE Utilization Form submitted by Tom Quinn was $262,327.80. The multiplication of this sublet amount into the project bid shows that Tom Quinn achieved 10.9 percent of the 11 percent DBE goal. The person who completed the bid documents for Tom Quinn rounded the DBE utilization calculation to 11 percent, contrary to the mathematical procedure for the rounding of numbers set forth on the form. The goal was improperly rounded to the nearest tenth as opposed to the nearest tenth percent. Tom Quinn did not submit documentation of its good faith efforts to comply with the project's DBE goal. A reasonable inference exists that Tom Quinn did not submit the documentation because its mathematical error mistakenly shows that the DBE goal was met in its bid submission. Hubbard submitted the third lowest project bid of $2,748,991.70. The total dollar amount for DBE goal listed was $302,794.32. Nine DBE's were utilized by Hubbard. The calculations to determine the DBE percentage of the total project show an 11.01 percent DBE goal was achieved. The four remaining bids reached a DBE percentage of the total project that met or exceeded the DBE goal.
Recommendation Based upon the foregoing, it is recommended: The Department's evaluation of the bids submitted for State Job No. 10120-3522 should be upheld as a proper evaluation. The bids received from Kelly Brothers and Tom Quinn on State Job No. 10120-3522 should be deemed nonresponsive for failure to achieve the DBE participation goal and for failure to submit sufficient documentation of good faith efforts. The bid protests in this proceeding should be denied and the bid awarded to Hubbard, the apparent responsive low bidder. RECOMMENDED this 25th day of October, 1991, in Tallahassee, Leon County, Florida. VERONICA E. DONNELLY 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 25th day of October, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-5337BID Petitioner's proposed findings of fact are addressed as follows: Accepted. See HO #1. Accepted. See HO #12. Accepted. Accepted. Rejected. Contrary to fact. Respondent's proposed findings of fact are addressed as follows: Accepted. See HO #2. Accepted. See HO #2 and #5. Accepted. See HO #4. Accepted. See HO #7. Accepted. See HO #8. Accepted. See HO #8. Accepted. See HO #6. Accepted. Accepted. Accepted. See HO #12 and #13. Accepted. See HO #9 and #12. Rejected. Contrary to fact. Intervenor Tom Quinn's proposed findings of fact are addressed as follows: Accepted. See HO #1. Accepted. Accepted. Accepted. Rejected. Contrary to fact. COPIES FURNISHED: Michael F. Kayusa, Esquire TITUS & KAYUSA 1922 Victoria Avenue, Suite A Fort Myers, Florida 33911 Susan P. Stevens, Esquire Assistant General Counsel Department of Transportation 605 Suwannee Street, M.S. 58 Tallahassee, Florida 32399-0458 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458 Thornton J. Williams, Esquire General Counsel Department of Transportation 605 Suwannee Street, Rm 562 Tallahassee, Florida 32399 0458 Bruce Leinback, Esquire Cummings, Lawrence & Vezina, P.A. 1004 DeSoto Park Drive Tallahassee, Florida 32301 Thomas P. Parks, Qualified Representative Tom Quinn Company, Inc. 1321 77th Street East Palmetto, Florida 34221
The Issue The issue in this case is whether the Respondent, the Department of Transportation (DOT), should award State Project No. 89030-3528 to The Cone Corporation, notwithstanding the bid protest filed by the Petitioner, The Murphy Construction Co., alleging that its bid was responsive and lower than The Cone Corporation's bid or, in the alternative, if its bid was nonresponsive, that The Cone Corporation's bid also was nonresponsive, and that the project should be re-bid. 1/
Findings Of Fact State Project No. 89030-3528 (the project) is for work on SR Bridge No. 890941 over Warner Creek in Martin County. The DOT solicited bids for the work and established December 5, 1990, as the deadline for submission of bids. The DOT established, as its Disadvantaged Business Enterprise (DBE) goal for the project, a goal of ten percent participation by DBEs. The Petitioner, The Murphy Construction Co., submitted a bid for the work in the amount of $1,026,222.96. It was the apparent second lowest bid. The Tom Quinn Company, Inc., was the apparent low bidder, at $846,216.87, but it did not meet the ten percent DBE goal and did not demonstrate good faith efforts to achieve the goal. The next lowest bidder, after the Petitioner, was The Cone Corporation's bid of $1,083,672.95. There was one other bidder. The Petitioner asserted that $110,360, or 10.75%, of the work would be done by DBEs. The Petitioner alleged in its bid that $26,571 worth of DBE work would be done by Advance Barricades & Signing, Inc. (Advance Barricades). The Petitioner's DBE Utilization Form for Advance Barricades & Signing, Inc., identified the DBE by name but left blank the parts of the form designated "Item No." and "Description (note if item qualifies for SUPPLIER)". As a matter of agency policy, the DOT has required that the portion of the form designated as "Description (note if item qualifies for SUPPLIER)" be completed. A description of the work to be performed by the DBE has been considered essential. The DOT has required the description of the work to be performed by the DBE because: first, the DOT interprets the applicable rules to require it; and, second, because the purpose of the rule and policy is to enable the DOT's Minority Programs Office to monitor the performance of the contract to be sure that the representation as to DBE participation is carried out--i.e., not only that the representation as to the percentage of DBE work is met but also that the DBE does the work the contractor represents that the DBE will do. Monitoring is significant because it can prevent the bidder, if successful, from trying to take advantage of the DBE by asking the DBE to do work that the DBE is not prepared or equipped to do or by asking the DBE to do more work for the money than contemplated by the DBE at the time of the bid. It also can insure that bidders will not, in essence, pay a DBE for doing nothing. Although the Petitioner's DBE Utilization Form gave the name of the DBE, it did not purport to describe the work the DBE was going to do. Although listing the name Advance Barricades and Signing, Inc., identified some of the work Advance Barricades does, it did not identify all of the work Advance Barricades does and, more importantly, did not identify the work the Petitioner was proposing that Advance Barricades was to do on the project in question. The DOT could have assumed what work Advance Barricades would do for the Petitioner, but it could not effectively monitor based on the assumption. Sometimes a DBE subcontractor will complete and sign the DBE Utilization Form for the bidder. Sometimes, the DBE will telephone the bidder with its price, and the bidder will complete the form. In the latter case, if the form is completed, the DOT Good Faith Efforts Committee will, as a matter of policy, telephone the DBE to confirm the information. In this case, Advance Barricades provided the Petitioner with a written price for the work, but the Petitioner itself prepared and submitted a form for inclusion in its bid on the project and did not include Advance Barricades's written price. Because the Petitioner left blank the parts of the form designated "Item No." and "Description (note if item qualifies for SUPPLIER)", the Good Faith Efforts Committee did not telephone Advance Barricades to confirm or supplement the information submitted by the Petitioner with its bid. The Cone Corporation's bid also included the representation that Advance Barricades would be doing work on the job that would qualify towards the DBE goal. Under the part of the form designated "Description (note if item qualifies for SUPPLIER)," The Cone Corporation stated, "SEE ATTACHED." Attached to the form was a proposal from Advance Barricades giving specific item numbers and descriptions of temporary barricades and signing, advance warning arrow panels, flashing lights, temporary pavement markings, and special detour signing to be furnished at a price of $20,805.45. In this case, The Cone Corporation's bid included a copy of the Advance Barricades proposal, which provided an adequate description, including item numbers, of the work Advance Barricades would do for The Cone Corporation. Despite the reasons for the DOT policy described in the preceding finding, the DOT has slipped into a practice of not requiring that the portion of the DBE Utilization Form designated "Item No." be completed. In addition, one-word generalizations--such as "pipe" or "trucking"--in the part of the form designated "Description (note if item qualifies for SUPPLIER)"are accepted by the DOT even though they may be insufficient to enable the DOT's Minority Programs Office to determine what kind of pipe or trucking is meant. Indeed, the DOT would have accepted description "barricades and signing" in the Petitioner's case. But these descriptions are inadequate to serve the purpose of the rule that the DBE work be described in the bid documents. For example, the word "pipe," without item numbers, does not identify the type or quantity of pipe to be provided. Indeed, the DOT's DBE Utilization Form gives evidence that more of a description initially was contemplated by the DOT. The form provides a space designated "Item No." In addition, the part of the form provided for the description of the DBE work also states: "(note if item qualifies for SUPPLIER)." (Emphasis added.) The form infers that the description will include the item number. Otherwise, it would be very difficult, and in some cases impossible, for the Minority Programs Office to effectively monitor the progress of construction. In this case, The Cone Corporation's bid included a copy of the Advance Barricades proposal, which provided an adequate description, including item numbers, of the work Advance Barricades would do for The Cone Corporation. But its DBE Utilization Form for H.S. Thompson described $85,702 worth of DBE work as "concrete, rebar and pipe." Under the column marked "Item No.," The Cone Corporation put, "various." If H.S. Thompson were going to do all of the "concrete, rebar and pipe" on the project, it would have been doing more like $540,000 worth of work for The Cone Corporation. Like the Petitioner's DBE Utilization Form for Advance Barricades, the H.S. Thompson form was inadequate to serve the monitoring purposes of the DOT's policy. The DOT now is in the process of considering whether to amend its rules, perhaps to provide that all proposed DBE participation be confirmed by telephone in order to avoid outcomes like the one its Good Faith Efforts Committee, Technical Review Committee, and Contract Awards Committee recommended in this case--the rejection of a bid as nonresponsive in favor of a higher bid that proposes a smaller percentage of DBE participation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Respondent, the Department of Transportation, enter a final order rejecting all bids on State Project No. 46090-3511. RECOMMENDED this 12th day of March, 1991, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 12th day of March, 1991.
Findings Of Fact The Florida Department of Transportation is the state agency charged with the responsibility to develop and adopt criteria for a DBE program, and administer the DBE program. Burkett is a Florida corporation whose sole stockholder is a white female American. She meets the criteria of a socially and economically disadvantaged individual. Burkett applied for certification as a DBE on July 12, 1991, and on October 1, 1991, the Department denied Burkett certification. Burkett submitted additional information and made changes in its internal organization to better conform to the Department's requirements; however, the Department has denied Burkett the designation based upon the owner's lack of expertise in the critical areas of the firm's operation, to wit; she does not possess education or experience in engineering. The parties stipulate that Burkett is substantially effected by the rules being challenged, and possesses standing to bring this rule challenge. In determining the qualifications of an applicant for DBE status, the Department utilizes Sections 334.044(2), 337.137, 339.05, and 339.0805, Florida Statutes; 49 CFR Part 23; the United States Department of Transportation administrative decisions; guidelines and training manuals from USDOT or the Federal Highway Administration (FHWA); and its own rules. At the recommendation of a representative from FHWA, the Department amended the rules being challenged regarding qualifications for DBE certification to explicate the requirement for ownership control, as required by Section 339.0805(1),(c), supra, and 49 CFR Part 23.53, to include the concept of "expertise in critical areas of operation of the business" which is required by the USDOT. The terms "expertise" and "critical areas of operation" are not defined in the Florida Statutes or DOT's rules. The DOT interprets "critical areas of operation" to mean the technical area in which the DBE certification is being sought. Management limited to the day-to-day normal business operations is not considered to be a "critical area of operation." The DOT's evaluation of "expertise" changes from business to business based upon the applicant's type of work. The department expects to see education and experience on the part of the disadvantaged owner in the technical area of operations of the business. The Department denied the Petitioner DBE certification because the disadvantaged owner did not possess engineering experience or education.
Findings Of Fact On May 29, 1985, The Columbus Company submitted a bid to construct a rest area along I-95 in accordance with the specifications for State Job No. 70225-3410. The bid documents required the bidders to have 10 percent subcontractors from DBEs or submit documentation with the bid to show good faith efforts to meet this 10 percent requirement were made if the 10 percent goal is not met. Respondent maintains a list of businesses qualifying as DBEs and periodically publishes a directory of those firms so qualifying. This latest directory published by DOT prior to the bid opening on the contract at issue here was April 15, 1985. Respondent's Bureau of Minority Affairs maintains a current register and will advise any bidder so requesting whether of not a firm qualifies as a DBE or WBE. The invitation to bid provides the contractor's bid submission shall include the following information: The names and addresses of certified DBE and WBE firms that will participate in the contract. Only DBEs and WBEs certified by the Department at the time the bid is submitted may be counted towards DBE and WBE goals. A description of the work each named DBE or WBE firm will perform. The dollar amount of participation by each named DBE and WBE firm. If the DBE or WBE goal is not met, sufficient information to demonstrate that the contractor made good faith efforts to meet the goals. Oscar Pope was Petitioner's estimator on this bid and prepared the bid which was submitted. Pope sent letters to various DBE firms soliciting their participation as subcontractors in the project and put ads in the newspaper. Prior to submitting the bid Pope realized that he did not have the required 10 percent DBE participation and he contacted another company to inquire where he could get additional minority participation from truckers and was referred to UPF Trucking. Pope contacted UPF Trucking and Billy Montgomery of UPF told Pope that UPF could qualify as a MBE. Pope did not check the directory or call DOT to verify UPF Trucking's status as a MBE. In his bid submitted, which included DBE/WBE utilization form No. 1, Pope listed UPF Trucking as being certified by Florida DOT as a MBE. Including the subcontract Petitioner entered into with UPF Trucking brought the MBE participation to the 10 percent goal required by the contract and no documentation was submitted to demonstrate Petitioner had made good faith efforts to reach the required DBE goals but could not do so. Upon the opening of the bids for this project, Petitioner was the low bidder. When the MBE participation listed in the bid was checked, UPF Trucking was found to be not qualified as a MBE firm. UPF Trucking was not listed in the April 15, 1985, directory of qualified minority businesses or on any approved list maintained by DOT. Had Pope called DOT before submitting Petitioner's bid, he could have learned UPF Trucking was not a qualified MBE. Petitioner's bid was forwarded to DOT's technical review committee and good faith efforts committee and both of these committees recommended the bid be found non-responsive because of the failure to meet the DBE goal. The bid was declared non-responsive and the contract was awarded to the next lowest bidder.
Findings Of Fact The underlying case for which attorneys fees in the undisputed amount of $2,775.00 are sought involved a 1992 application by Union Trucking, Inc. for recertification by the Florida Department of Transportation (FDOT) as a disadvantaged business enterprise (DBE). Union Trucking, Inc. had originally been certified by FDOT in 1988, and upon successive applications for certification, had been recertified by FDOT in 1989, 1990 and 1991. Recertification was applied for on July 20, 1992 and denied on December 14, 1992. A request for formal hearing followed on January 15, 1993 and the case proceeded before the Division of Administrative Hearings (DOAH) until FDOT recertified Union Trucking, Inc. on October 15, 1993. On November 17, 1993, DOAH hearing officer P. Michael Ruff entered an order relinquishing jurisdiction, which resulted in FDOT's December 17, 1993 final order. FDOT's final order was entered on the grounds that certification had been granted, did not alter the recertification terms, and dismissed the request for formal hearing. On February 14, 1994, less than sixty days after entry of the FDOT final order, Petitioner filed its original "Application for Award of Attorneys Fees Pursuant to F.S. 57.111," hereafter "petition." On March 2, 1994, FDOT filed a response, which, although no motion to dismiss was filed, addressed assorted insufficiencies of the petition. FDOT's response did not raise any timeliness bar. An order of dismissal with leave to amend within fifteen days was entered by the undersigned hearing officer on April 21, 1994. The amended petition was filed May 11, 1994, and FDOT filed its response on May 26, 1994, still not asserting any timeliness bar. At formal hearing, the parties stipulated that the only issue for consideration was whether or not FDOT had been substantially justified in denying the 1992 recertification. Otherwise, it was undisputed that Petitioner is a small business party; that FDOT was not merely a nominal party; that the employment, amount of fee, and hours worked by Petitioner's counsel were as stated in the pleadings, and that there were no "unusual circumstances" as contemplated within the applicable statute and rule. The undersigned hearing officer suggested that the parties include in their post-hearing proposals arguments directed to timeliness, vel non, of the attorney's fee and costs petition, and thus, whether or not DOAH has jurisdiction of this case. With regard to the "substantial justification" issue, it is necessary to review the DBE process since 1991. Union Trucking, Inc.'s 1991 application for recertification was received by FDOT on April 30, 1991. Documents submitted to FDOT by Union Trucking, Inc. in conjunction with the 1991 application revealed that Petitioner corporation had undergone an ownership change on April 1, 1991, approximately 29 days prior to submittal of the 1991 application, which ownership change had transferred 49 percent of Union Trucking, Inc.'s corporate stock from Denise Willis to Robin P. Wilson; that the new owner, Robin P. Wilson, did not list any employment on her resume other than at Pritchett Trucking, Inc.; that Union Trucking, Inc. had a business relationship with Pritchett Trucking, Inc.; and that the new 49 percent owner of Union Trucking, Inc., Robin P. Wilson, is the daughter of Marvin Pritchett, owner of Pritchett Trucking, Inc. Marvin Pritchett is a white American male. Robin Pritchett Wilson is a white American female. Denise Willis, who previously owned the 49 percent of Union Trucking, Inc. stock which was transferred to Robin Wilson is also a white American female, and the stepdaughter of Marvin Pritchett. From Union Trucking, Inc.'s inception and at all times material, 51 percent of Union Trucking, Inc.'s stock has been owned by Warren Lee, a black American male. At all times material, Union Trucking, Inc. has been 100 percent owned by disadvantaged classes (female and black). At all times material, FDOT did not break down its disadvantaged certifications as to "black" versus "female" for purposes of categorizing DBE status, but only looked to whether or not at least 51 percent of the stock was owned by a member(s) of a disadvantaged class. FDOT has no rule specifically requiring that all owners work in the business, only that day to day control be in the hands of the disadvantaged class. FDOT conducted an on-site visit to Union Trucking, Inc. on July 22, 1991, at which time FDOT requested additional information as to Robin Wilson's employment with Union Trucking, Inc. and was notified that Robin Wilson spent approximately one to two hours per day working for Union Trucking, Inc. FDOT also inquired about Union Trucking Inc.'s business relationship with Pritchett Trucking, Inc. and received the explanation that the relationship was "like any lease owner with the company they lease with." DBE personnel at FDOT did not understand what this response meant, but they did not inquire further in 1991. Instead, the FDOT DBE certification committee voted to recertify Union Trucking, Inc. with a special monitor, because there were undefined "concerns" and unidentified "feelings" about the eligibility of Union Trucking, Inc. At formal hearing, FDOT personnel were very clear that recertification in 1991 with a "special monitor" meant that when Union Trucking, Inc. came up for recertification in 1992, an on-site review must be conducted. Prior to receiving Union Trucking, Inc.'s July 20, 1992 application for recertification, FDOT was notified by the Department of General Services (DGS) that DGS also had "concerns" about Union Trucking, Inc. On September 10, 1992, DGS notified FDOT that DGS had denied Union Trucking, Inc.'s application to DGS for Minority Business Enterprise (MBE) certification, that the DGS denial had been upheld at a DOAH hearing, and that FDOT would be provided a copy of the DOAH hearing officer's recommended order. FDOT subsequently received a copy of that recommended order which had been entered September 9, 1992. FDOT's Minority Programs Office Manager testified that, in his opinion, the recommended order in the DGS case (Exhibit DOT 9) "verified" the FDOT "concerns" expressed during the 1991 FDOT recertification process, but he defined those concerns as independent financing. The FDOT DBE certification committee chairperson testified that the recommended order addressed concerns expressed during the 1991 FDOT recertification process, but he defined the concerns differently, as lack of independency from familial relationships, i.e. control, and financial relationships of family corporations. Both men considered FDOT's and DGS' rules to be substantially similar. In fact, the September 9, 1992 recommended order to DGS involved a different agency (DGS) than FDOT, a different statute (Section 287.0943 F.S.) than the one authorizing FDOT's DBE program and different rules (Rules 13A- 2.005(4)(a) and (b) and 13A-4 F.A.C.) than the ones administered by FDOT. FDOT is required to operate under Section 337.135 F.S. and administer Rules 14-78.002 and 14-78.005 F.A.C. Also, the recommended order focused on a legal conclusion that Union Trucking, Inc. was financially dependent, or at least at the time of its corporate "start-up" in 1986 was financially dependent, upon Pritchett Trucking, Inc. The recommended order stated, in pertinent part, as follows: . . . co-owner of the applicant is Pritchett's daughter and a natural subject of his goodwill and generosity, such a relationship is prohibited by the statute, [referring to Section 287.0943 F.S.] Similarly, her service as a director of Pritchett corporation, carrying on Union's business from her desk at Pritchett Trucking is natural, but estab- lishes a prohibited relationship. [Bracketed material added her for clarification]. Upon receipt of the DGS recommended order, FDOT did not seek further explanatory information from the applicant, as was FDOT's standard procedure under its normal operation. Further, FDOT did not follow its own specially prescribed procedure for certified DBEs with "special monitor" status, in that FDOT did not conduct a new 1992 on-site review. Instead, two months later, FDOT sent its December 14, 1992 denial letter. The FDOT employee who prepared the letter testified that the letter denial was based on her review of all the information already in FDOT's DBE file on Union Trucking, Inc., upon the audio tape of the old 1991 on-site review interview, and upon corporate records of the Secretary of State. The FDOT letter, however, closely tracked the DGS recommended order but denied recertification by FDOT on the basis of FDOT Rules 14-78.005(7)(c)1. and 2.c. and 14-78.005(7)(a) F.A.C. It also stated that Union Trucking, Inc. was not an independent business entity or a small business concern and that there was an "affiliate" relationship under FDOT rules due to "Susan [sic] Wilson." It renamed Robin Wilson and also extrapolated a great deal of financial information that appears to come directly from the DGS recommended order. As a result of FDOT's denial of its 1992 recertification application, Union Trucking, Inc. requested a formal hearing. During the progress of that case before DOAH, FDOT received a copy of an affidavit by Robin Wilson in which she stated that Union Trucking, Inc. only purchased parts and fuel from Pritchett Trucking because Pritchett's Lake Butler terminal was the least expensive and most convenient source. Ms. Wilson also stated that Union Trucking, Inc. had not received any loans from her father's companies in four to five years, and that there were no current outstanding loans. In an effort to negotiate the issues and resolve matters without formal hearing before DOAH, FDOT finally conducted an on-site review in July 1993. Documentation was provided by Union Trucking, Inc. to show that all recent transactions with any of Marvin Pritchett's companies were properly invoiced "arm's length" transactions and that Union Trucking, Inc. dealt with many other companies as well; that Union Trucking, Inc.'s old debts to Marvin Pritchett's companies had been retired with zero balances prior to Union Trucking, Inc.'s 1992 recertification application to FDOT; and that Union Trucking, Inc. had three trucks and trailers normally being used full-time in its business. Random samplings by FDOT's consultant during this on-site review confirmed the information in the possession of FDOT prior to the 1992 application for recertification, most of which had been provided and was already in FDOT's possession as early as April 30, 1991. If FDOT had inquired concerning any loans at the time it received the recommended order in September 1992, it would have determined that all loans to Union Trucking, Inc. from any of Marvin Pritchett's various enterprises had been paid off prior to Union Trucking, Inc.'s 1992 recertification application to FDOT. FDOT's consultant's report after the 1993 on-site review determined that there currently were no "affiliated" firms under FDOT rules. It also appears from the report that FDOT then accepted that Robin Wilson split her time between office management for Union Trucking, Inc., running her own company named "Robin Pritchett Trucking Inc.," and working for her father's "[Marvin] Pritchett Trucking Inc." Having clarified these matters, FDOT no longer had problems or concerns with such an arrangement. Union Trucking, Inc.'s records on file for contract work with FDOT through other contractors also reflected use of owned trucks and drivers employed by Union Trucking, Inc. FDOT then recertified Petitioner effective October 15, 1993. At the attorney's fee and costs hearing herein, FDOT presented evidence that it did not have the correct location address for Union Trucking, Inc. when its personnel went to the July 1993 on-site review. This evidence does not justify FDOT's 1992 denial. Union Trucking, Inc.'s corporate office had moved a few weeks previous to the 1993 on-site review. Since Union Trucking, Inc. and its lawyer had been in constant communication with FDOT during the litigation phase of the recertification denial case, consistently urging an on-site inspection, any failure by Union Trucking, Inc. to clarify the geographical relocation of its office in 1993 was either an oversight or an innocent miscommunication. This change of address was not noted in Union Trucking, Inc.'s 1992 reapplication because the move had not yet occurred when that reapplication was submitted in July of 1992. Obviously, FDOT did not use the 1993 failure to notify the agency of a change of address as a reason to deny recertification in 1992, and FDOT also did not consider it a sufficiently serious flaw to withhold recertification after the July 1993 on-site review. FDOT also presented evidence that Robin Wilson did not tell the agency that she owned 100 percent of another corporate entity, "Robin Pritchett (her maiden name) Trucking, Inc." until the July 1993 on-site review. FDOT's two on- site reviewers concurred that "Robin Pritchett Trucking," consisting of one truck, which was sporadically used to haul wood chips, was never any cause for FDOT's concern. Apparently, FDOT considers hauling wood products to be an entirely different industry than the hauling of highway aggregates, which is the type of work done on FDOT contracts and the type of work done by Union Trucking, Inc. While Robin Pritchett Wilson's "affiliation" with her own independent corporation, "Robin Pritchett Trucking, Inc.," possibly was the type of "affiliation" which she should have disclosed, pursuant to FDOT's DBE rule, on Union Trucking Inc.'s 1992 application for recertification by FDOT as a DBE, it is clear that FDOT did not know of this nondisclosure when the agency denied recertification in December 1992. FDOT did not deny recertification at that time for that reason. FDOT also did not consider such nondisclosure to be a sufficiently serious flaw so as to withhold recertification after the disclosure at the July 1993 on-site review. Also, FDOT never asserted that its personnel had been confused in 1992 between "Robin Pritchett Trucking, Inc." and "[Marvin] Pritchett Trucking, Inc." Therefore, this late disclosure does not justify FDOT's 1992 denial of certification. In its July 1993 on-site review, FDOT investigated but found no barrier to recertifying Union Trucking, Inc. under the statutes and rules FDOT administers. There were no barriers related to familial relationships, related to Robin Wilson's being an owner of her own corporation, related to her being a director of any corporation, related to her owning a nominal number of stock shares in Marvin Pritchett's several businesses, related to her use of Pritchett's desk or office equipment, related to Pritchett loans to Union Trucking, Inc., related to Mr. Lee's use of a special account, or related to any other factual reason cited in either FDOT's December 14, 1992 denial letter or the September 9, 1992 recommended order affecting DGS. Nonetheless, FDOT's consultant's closing comments in the 1993 on-site report sum up FDOT's continuing overall approach to Union Trucking, Inc., both before the 1993 on-site review and thereafter. This approach is to "continue to question" successful DBEs whose principals have successful families and successful corporate investments. He wrote: Because of the close family relationships and multiple companies owned or operated, this firm will continue to be questioned as to eligibility for the DBE program. Any concerns I have remaining can only be resolved through the actual job perform- ance and compliance on future projects. I strongly recommend a continued compliance report be addressed with detailed concerns to support the next certif- ication provided the firm is recertified.
The Issue 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.
Findings Of Fact 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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." 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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.
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: - 4. Accepted and incorporated herein. 5. - 7. Accepted and incorporated herein. - 11. Accepted. Accepted and incorporated herein. Accepted and incorporated herein. & 15. Accepted and incorporated herein. Accepted. Not a Finding of Fact but a statement of law. Accepted. Accepted and incorporated herein. - 22. Accepted and incorporated herein. Not a Finding of Fact but a restatement of the contents of a document received in evidence. 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: Accepted. - 6. Accepted and incorporated herein. 7. & 8. Accepted. 9. - 14. Accepted. 15. - 18. Accepted. 19. Accepted. 20. & 21. Accepted and incorporated herein. 22. & 23. Accepted. 24. Accepted. 25. & 26. Accepted and incorporated herein. 27. Accepted. 28. & 29. Accepted and incorporated herein. 30. - 34. Accepted and incorporated herein. 35. - 47. Accepted and incorporated herein. 48. - 53. Accepted and incorporated herein. 54. - 56. Accepted and incorporated herein. 57. Accepted. 58. - 60. Accepted and incorporated herein. 61. Accepted and incorporated herein. FOR THE INTERVENOR: 1. & 2. Accepted and incorporated herein. 3. & 4. Accepted. & 6. Accepted and incorporated herein. Accepted. - 12. Accepted and incorporated herein, Accepted. Accepted. Accepted and incorporated herein. - 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. 33. Irrelevant. 34. Accepted and incorporated herein. 35. Accepted and incorporated herein. 36. & 37. Accepted and incorporated herein. 38. & 39. Accepted. 40. - 43. Accepted. 44. & 45. Irrelevant. 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
Findings Of Fact On April 5, 1985, the Department issued its Request for Proposal (RFP) for "Community Care for Disabled Adults - Home Delivered Meals/Homemaker Services." By May 16, 1985, the deadline established in the RFP, four proposals had been filed with the Department. A review committee consisting of three Department employees, James Gibson, Betty Gunter, and Aimee Lurkins, reviewed the proposals and rated each response, numerically, in accordance with the rating sheet which had been included in the RFP. The combined scores of the reviewers resulted in the bidders being ranked as follows: Visiting Nurse Association - 259 points Health Force of Broward - 212 points Professional Care, Inc. - 170 points Accredited Medical Services - 137 points Cathy D'Heron, contract manager for the program, reviewed the four proposals, as well as the committee's evaluations, and concurred that VNA was the most responsible bidder. Accordingly, the Department posted its recommended award of the bid to VNA. Petitioner filed a timely protest to the award. Petitioner contends that VNA's proposal was not responsive to the RFP and that the Department acted arbitrarily and capriciously in evaluating and awarding the bid. Petitioner's first contention is without merit. The evidence establishes that VNA's proposal was responsive to the RFP. Petitioner's second contention is equally without merit. The gravamen of Petitioner's charge is its disagreement with the points awarded by two members of the review committee. However, the record is devoid of any proof that the committee's evaluation was anything short of well reasoned and appropriate. Significantly, Petitioner concurs with Mr. Gibson's evaluation. Mr. Gibson awarded VNA 82 points and Petitioner 64 points.
The Issue Whether Petitioner's bid on State Job No. 86075-3459 was non-responsive and Respondent's award of the bid to the next lowest responsible bidder was arbitrary, illegal or dishonest.
Findings Of Fact Petitioner timely submitted its bid on State Job No. 86075-3459 and this bid was the lowest received by DOT on this project. The DBE requirement on this bid was 11%. This means each bidder had to show on its submittal that at least 11% of the project cost would go to a minority business subcontractor. With its bid submittal, on the Disadvantaged Business Enterprise (DBE) Utilization Summary (Form 275-020-003 Minority Prog. 11/87), Petitioner listed as DBE subcontractors Reliable Trucking, Inc. with $100,000 as the dollar amount for DBE goal and $280,000 for Community Asphalt Corporation. (Exhibit 1.) These two figures exceeded the 11% minimum DBE requirement. Community Asphalt Corporation had been a certified DBE subcontractor in early 1990 but in May 1990 its certification expired and was not renewed. Accordingly, at the time of the bid opening, Community Asphalt was not listed on the list of certified DBE subcontractors DOT provided to bidders with the bid forms to complete for this project. Petitioner had initially shown only Reliable Trucking, Inc. on Exhibit 1 with $400,000 as the dollar amount for the DBE goal. Reliable Trucking is a certified DBE. Petitioner received a late quote from Community Asphalt and just before submitting its bid added Community Asphalt to its DBE Utilization Summary, interlining the $400,000 amount for Reliable Trucking and changed this amount to $100,000. Although Petitioner still intended to use Reliable Trucking for work on this project in excess of $400,000 its policy, which was here followed, is to show on its DBE Utilization Summary submitted with its bid only a small percentage over the required minimum. Therefore, when Community Asphalt was added as a DBE subcontractor, the dollar amount to Reliable Trucking was reduced. Petitioner's employee who added Community Asphalt to the DBE Utilization Summary checked to see that Community Asphalt was a certified DBE but, unfortunately, looked at the list of certified DBE subcontractors furnished by DOT for an earlier bid--not the current list. The current list which had been supplied to Petitioner did not list Community Asphalt as a certified DBE. When the bids received were first checked by the DOT employee who reviews bids to see that DBE requirements are met, she approved the bid but set it aside for further check. Later, after realizing Community Asphalt was not on the approved list of DBE's she disapproved the bid and it proceeded to the Good Faith Efforts Committee for review. Petitioner submitted no documentation of any good faith efforts to comply with the DBE requirements. This is understandable as Petitioner thought when the bid was submitted that Community Asphalt was a certified DBE and its bid complied with the DBE requirements. In reviewing and accepting bids for DOT projects, Respondent relies entirely on the documentation submitted with the bid and does not allow bidders to supplement the bid after opening.
Recommendation It is recommended that the protest of Bergeron Land Development, Inc. to the rejection of its bid submitted on State Job No. 86075-3459 be dismissed with prejudice. DONE and ENTERED this 23rd day of October, 1990, in Tallahassee, Leon County, Florida. KEN N. AYERS 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 23rd day of October, 1990. APPENDIX Respondent's proposed findings are generally accepted, except for: Rejected. The DBE forms submitted by Petitioner, as corrected by Petitioner before submittal, showed Reliable Trucking, Inc., a certified DBE, to receive only $100,000 in subcontracts, far less than the 11% DBE participation required. Rejected. Whether Reliable Trucking had a firm contract with Petitioner to provide in excess of $400,000 subcontracting work on this project is immaterial if the DBE utilization form submitted with the bid fails to show the DBE utilization goal is attained or documentation of good faith efforts are not included. Rejected that the mistake by Petitioner was a non-material mistake. Bids have to be accepted as received. Rejected. Rejected. Rejected. Accepted as an accurate quote of Rule 14-78.003,Florida Administrative Code. The legal conclusion that the ruledoes not require evidence of good faith efforts be included withthe bid submitted is rejected. The conclusion of law that Respondent violated its own rule is rejected. COPIES FURNISHED: John H. Beck, Esquire 1026 East Park Avenue Tallahassee, Florida 32301 Paul J. Martin, Esquire Department of Transportation 605 Suwannee Street Tallahassee, Florida 32399-0450 John Radey, Esquire Post Office Drawer 11307 Tallahassee, Florida 32302 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458 Thornton J. Williams, Esquire General Counsel Department of Transportation 605 Suwannee Street, Room 562 Tallahassee, Florida 32399-0458
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Board take no action. DONE and ORDERED this 29th day of September, 1976 in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Michael Schwartz, Esquire Suite 201, Ellis Building 1311 Executive Center Drive Tallahassee, Florida 32301 Kirk N. Kirkconnell, Esquire Post Office Box 1537 Winter Park, Florida 32790
