Findings Of Fact Petitioner was incorporated on September 22, 1983. The initial directors were Ben E. Guzman and James E. Quinn. The corporation initially issued 40 shares. Mr. Guzman owned 10.2 shares, and Mr. Quinn owned 9.8 shares. Myrna Bortell owned 10.2 shares, and Edward T. Quinn, Jr. owned 9.8 shares. When expressed as percentages, the ownership shares have been rounded off so that Mr. Guzman and Ms. Bortell each owns 26%. Each of the shareholders made a real and substantial contribution to the capital of the corporation at its inception. This investment has not been returned in the form of return of capital or dividends, as such. At the organizational meeting of Petitioner, Mr. Guzman was elected to serve as president, Mr. James Quinn as vice-president, and Ms. Bortell as secretary and treasurer. Petitioner's bylaws provide that a quorum of shareholder requires the representation in person or by proxy of the majority of shares entitled to vote. Once a quorum is present, the vote of a majority of shares entitled to vote constitutes action taken by the shareholders. The shareholders elect the directors, who are to direct the management of the business and affairs of the company. Shareholders may remove any director at any time by a vote of the majority of the shares. Directors elect and remove the officers. The president is the chief executive officer of the company and has general and active management of the business and affairs of the company, subject to the directors. The ownership and management structure of Petitioner did not change until the annual shareholders' meeting on August 1, 1985. At that time, Ms. Bortell replaced Mr. Quinn as a director. The ownership and management structure did not change again until James Quinn's departure two years later, as set forth below. Petitioner promptly applied for certification as a what is now known as a Disadvantaged Business Enterprise (DBE). By Final Order dated June 20, 1984, Respondent granted certification to Petitioner. Petitioner continuously maintained its one-year certification thereafter, renewing it annually. During the one-year certification term due to expire on May 12, 1988, Respondent notified Petitioner, by letter dated October 19, 1987, that Petitioner's "application for certification as a [DBE] is hereby denied." The letter informed Petitioner that Respondent had determined that Mr. Guzman did not exercise control of the corporation, which did not appear to be an independent business entity. The letter cited and relied upon what is now Rule 14-78.005(7)(c) and (e), Florida Administrative Code. Petitioner was given 15 days within which to request a hearing. By letter dated October 28, 1987, Petitioner demanded a hearing. By letter to Petitioner dated November 19, 1987, the U.S. Department of Transportation announced as its final administrative determination that Petitioner was ineligible for federal DBE certification. The letter cited two bases for the denial. First, Mr. Guzman and Ms. Bortell had failed to demonstrate that they were members of the Hispanic minority group. Membership in such group required a showing that they were in fact part of the Hispanic community. This determination was based on the failure of Mr. Guzman and Ms. Bortell to respond to a request by Lee County, Florida, for evidence of their status as Hispanics. Second, Ms. Bortell lacked technical expertise in the construction industry. Although Mr. Guzman had such expertise, so did the two non-minority owners, Messrs. Quinn, so it was "highly unlikely" that the minority owners could independently control Petitioner. By letter dated January 11, 1988, the U.S. Department of Transportation informed Respondent of the action taken in the November 19 letter, a copy of which was enclosed. Respondent advised Petitioner by letter dated January 13, 1988, that, pursuant to the November 19 letter, Petitioner was ineligible for use as a DBE to meet federal goals on federal-aid projects. The letter noted that the November 19 letter did not affect Petitioner's eligibility for use as a DBE on projects not involving federal funding. By letter dated February 24, 1988, the U.S. Department of Transportation clarified a misunderstanding arising out of its November 19 letter. Although a decertified contractor could not be used to meet Respondent's annual federal DBE goal, the contractor's participation could not be prohibited until the administrative hearings were complete. Thus, the decertified contractor could be used to meet project goals "on an individual basis." Requesting clarification of the clarification, Respondent, by letter dated April 22, 1988, asked U.S. Department of Transportation whether the participation of Petitioner would thereby jeopardize Respondent's ability to meet its annual federal DBE goal. By letter to Respondent dated April 29, 1988, U. S. Department of Transportation stated that Petitioner should not be allowed to participate as a DBE on any federal-aid project and Petitioner could not be used to meet annual federal DBE goals. In addition, Petitioner could not be used to meet federal DBE goals on individual projects either. In the meantime, Respondent, by letter dated April 22, 1988, informed Petitioner that Ms. Bortell's lack of control and limited involvement with Petitioner, as well as Mr. Guzman's limited involvement, disqualified Petitioner as a DBE. Respondent requested whether Petitioner still wanted a hearing. The letter mentions a meeting with the U.S. Department of Transportation representative with whom the parties had been corresponding. Undeterred by what must have appeared to be a puzzling display of federalism, Petitioner repeated its desire for a hearing by letter dated May 12, 1988. The letter restated Petitioner's disagreement with Petitioner's allegations that the minority owners lacked control and the corporation was not an independent business entity. On the same date, Respondent transmitted the file to the Division of Administrative Hearings for a hearing on the issue whether Petitioner was entitled to "obtain" DBE certification in accordance with what is now Rule 14- 78.005(7)(c) and (e). Respondent subsequently notified the Division of Administrative Hearings of the receipt of the May 12 letter from Petitioner. Mr. Guzman and Ms. Bortell are Hispanic Americans, who are socially and economically disadvantaged individuals. The Quinns are not socially and economically disadvantaged individuals. Petitioner is engaged in the milling and recycling of asphalt. Mr. Guzman has substantial involvement with the day-to-day affairs of Petitioner's business. He is responsible for the supervision of all projects of Petitioner and supervises the foremen on these projects. He handles the preparation of bids for work based on estimating that he performs. He schedules labor and equipment for jobs. At one time he was one of the only operators of a milling machine, but now the company has 15 employees and he no longer is needed for this purpose. He also has been directly involved in securing of financing for the corporation. When he is not at a project site, he is in the office daily by 6:30 a.m. He also has exclusive authority to hire and fire nonclerical personnel. Ms. Bortell visits the office perhaps once a week and speaks to someone at the office by telephone a few times a week. She has no experience in milling or construction generally. She works full-time as an account manager for a utility company. Her background includes seven years employment for an insurance company. Her only duties for Petitioner include the handling of insurance matters and supervision, including hiring and firing, of clerical personnel. In mid-1987, Edward Quinn bought all of the shares of stock owned by his brother, James Quinn. In August 1987, Edward Quinn became a salaried employee of Petitioner. Previously, James Quinn had worked as an operator in the field, although he quit when he sold his interest in the corporation. Edward Quinn handles sales and contract administration for Petitioner, although health problems have prevented him from doing much since joining Petitioner as an employee. In fact, Edward Quinn performs limited services for Petitioner and his income from Petitioner resembles in many respects a passive return on investment rather than earned income. Mr. Guzman controls the daily affairs of the business of Petitioner. Major business decisions are handled by the three shareholders. Although no major disputes have arisen among the shareholders, in the event of such a dispute, Ms. Bortell would side with Mr. Gtizman so that the socially and economically disadvantaged shareholders ultimately control the corporation. There is no evidence whatsoever that Petitioner is less than an independent business entity.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered granting Petitioner DBE certification for a period of three months, at which time Petitioner may reapply for certification, if it desires; provided, however, Petitioner may not participate, as a DBE, in any federal-aid project unless and until recertified as a DBE by the U.S. Department of Transportation. ENTERED this 21st day of September 1988, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of September 1988. APPENDIX Treatment Accorded Petitioner's Proposed Findings Adopted. Adopted in substance. First sentence adopted. Second sentence rejected as irrelevant, legal conclusion, and without proper predicate to the extent that it can be characterized as a fact. The reasons are set forth in the Conclusions of Law. Adopted. 5 and 7. Rejected as legal conclusion, although included in Conclusions of Law. 6. Rejected as legal conclusion. Adopted. Rejected as legal conclusion. Treatment Accorded Respondent's Proposed Findings 1-8. Adopted. Rejected as irrelevant. Adopted. First sentence rejected as recitation of testimony and legal argument. Remainder adopted in substance. 12-13. Rejected as legal argument. Adopted as to supervision of clerical personnel and handling of insurance. Remainder rejected as unnecessary. Rejected as unsupported by the greater weight of the evidence. Adopted in substance. Rejected as recitation of testimony. COPIES FURNISHED: James W. Anderson Chief Litigation Attorney Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32301-8064 George Spofford, Esquire Cummings, Lawrence & Vezina Post Office Box 589 Tallahassee, Florida 32302-0589 Mill-It Corporation 961 Sunshine Lane Altamonte Springs, Florida 32714 Kaye N. Henderson Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Thomas H. Bateman, III General Counsel Department of Transportation Haydon Burns Building 562 Suwannee Street Tallahassee, Florida 32399-0450 =================================================================
Findings Of Fact Department of Transportation (DOT) Project #02000-3608 is a federal aid highway project requiring the replacement of a bridge on Kings Bay Drive over a canal near the Crystal River in Citrus County, Florida. The bridge is currently closed due to hurricane damage. The bid specifications were published, and a bid submittal deadline of March 28, 1990, was established. The bid specifications included a disadvantaged business enterprise (DBE) goal of 10%, and hiring goals of 6.9% female and 17.1% minority. The bid specifications also included the following special provisions related to DBE: PREPARATION OF PROPOSALS * * * 2-5.3.2 Submittals for Contracts with Goals: For all contracts for which DBE contract goals have been established, each contractor shall meet or exceed or demonstrate that it could not meet, despite its good faith efforts, the contract goals set by the Department. The DBE participation information shall be submitted with the Contractor's bid proposal. Award of the Contract shall be conditioned upon submission of the DBE participation information with the bid proposal and upon satisfaction of the contract goals or, if the goals are not met, upon demonstrating that good faith efforts were made to meet the goals. The Contractor's bid submission shall include the following information (Submitted on Forms Nos. 275-020-002-DBE Utilization Affirmative Action Certification, 275-020-003-DBE Utilization Summary and 275-020-004-DBE Utilization Form): The names and addresses of certified DBE firms that will participate in the contract. Only DBEs certified by the Department at the time the bid is submitted may be counted toward DBE goals. A description of the work each named DBE firm will perform. The dollar amount of participation by each named DBE firm. If the DBE goal is not met, sufficient information to demonstrate that the contractor made good faith efforts to meet the goals. * * * DISQUALIFICATION OF BIDDERS ARTICLE 2-11 (Page 11) is expanded as follows: (h) Failure to satisfy the requirements of 2-5.3. * * * (Petitioner's exhibit #2, emphasis added) DBE goals for projects to be bid are established at DOT by a committee which includes a representative from the agency's Bureau of Minority Programs. From a list of individual bid items, the committee determines which items are normally subcontracted. Those items are totalled to achieve a percentage of the job. The Bureau of Minority Programs then reviews the list to determine the number of DBEs, from the agency directory, which would be available to perform the subcontracted work in the relevant geographical area. The Bureau of Minority Programs then makes its recommendation to the goals-setting committee. For example, if 40% of the job would normally be subcontracted and DBEs were available to perform 50% of that work, the goal could be set at 20%. In practice, the goals are not set so high, and the most common goal is 10%, as that is the overall goal of the DOT. Goals vary, depending on the type of work, the location and the availability of DBEs. Hiring goals are also established for each project, but in contrast to the DBE goals, they are not considered in the award of a bid. Four firms responded to the bid advertisement for Project Number 02000- 3608. The Cone Corporation was the low bidder at $588,793.45. Cone Constructors, Inc. bid $629,736.85. Piling and Structures, Inc. bid $700,436.53; and Leware Construction Company bid $733,333.33. The Cone Corporation bid included DBE utilization forms indicating that $56,000.00 would be subcontracted to H.S. Thompson Construction Company for concrete and rebar work. This amounts to approximately 9.5% of its bid. The Cone Corporation did not submit any statement with its bid package as to how good faith efforts were made to comply with the DBE goal. A good faith effort committee of the department met to review the bids, and determined that it could not evaluate the Cone Corporation's good faith efforts because no information was provided. Cone Constructor, Inc., the next lowest bidder, provided a $70,000.00 subcontract with a DBE firm, D.A.B. Constructors, Inc., for various work items related to the project. This amounts to approximately 11% of its bid, and meets the specified 10% goal. Piling and Structures, Inc., provided for six DBE subcontractors for a total of $56,000.00, or approximately 8% of its bid; and Leware Construction Company, the highest bidder, provided for four DBE subcontractors, for a total of $76,887.45, or approximately 10.5% of its bid. Thus, two bidders met the specified DBE goal, and two did not. The good faith efforts committee recommended that Cone Corporation's bid be declared nonresponsive because the DBE goal was not achieved and documentation of good faith effort was not submitted. The committee noted that DBE utilization forms submitted by other bidders indicated that there were other DBE subcontractors available for work on the project. Bob Graham is vice-president of the Cone Corporation and has worked for the firm for ten years. He is responsible for the day to day management of the firm, and he prepared the project bid. Bob Graham concedes that the DBE subcontract in his bid does not meet the 10% goal. He solicited and received other DBE subcontract quotations, but rejected them as being higher than non-DBE quotations. Only one DBE subcontractor responded lowest in an area of work and Graham submitted that firm, H.S. Thompson, as part of his bid. Bob Graham also admits that he did not submit any good faith documentation with his bid to demonstrate that an effort was made to meet the DBE goal. Bids are commonly compiled at the last minute, with the bidders assembling various quotations and putting together final numbers to meet the bid deadline. Graham simply did not have time to add the good faith effort documentation. He made a considered business decision to reject all but one DBE subcontractor, in favor of being able to submit a lower bid. He knew at the time that his bid was submitted that the DBE goal was not met. His bid was approximately $41,000.00 lower than the next lowest bid. For an additional $2,800.00 he could have met the 10% goal. This, of course, was apparent only after the bids were opened.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED That a Final Order be entered, dismissing the protest of Petitioner, the Cone Corporation. DONE AND RECOMMENDED this 9th day of July, 1990, in Tallahassee, Leon County, Florida. 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 9th day of July, 1990. COPIES FURNISHED: W. Crit Smith, Esquire SMITH AND THOMPSON, P.A. 1530 Metropolitan Blvd. Tallahassee, FL 32308 John H. Beck, Esquire 1020 East Park Avenue Tallahassee, FL 32301 Paul J. Martin, Esquire and Susan P. Stephens, Esquire Department of Transportation Haydon Burns Building, M.S. #58 605 Suwannee Street Tallahassee, FL 32399-0450 Ben G. Watts, Secretary Attn: Eleanor F. Turner, M.S. #58 Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0450 Thornton J. Williams, General Counsel Department of Transportation 562 Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0450 =================================================================
The Issue The issue is whether the proposed award of Contract No. E1G23 to DeAngelo Brothers, Inc. d/b/a DBI Services Corporation (DBI) is contrary to the Department of Transportation’s governing statutes, rules, policies, or the specifications in the Request for Proposals (RFP).
Findings Of Fact On June 18, 2007, the Department issued RFP No. E1G23, which solicited proposals for “ultra asset maintenance” for Interstate 75 (I-75) and interchanges in Broward, Collier, Lee, Charlotte, Manatee, Desoto, and Sarasota Counties. The Department issued three addenda to the RFP. The addenda did not make any material changes that are pertinent to the issues in this proceeding. The Scope of Services for the RFP stated that for all roadways and facilities covered by the contract, the contractor will be responsible for performing all of the maintenance activities that would otherwise have been performed by the Department, including but not limited to, mowing the right-of- way, maintaining guardrails, fixing potholes, maintaining stormwater management facilities, cleaning and maintaining rest areas, tree trimming, and incident response and management. In the asset management industry, this type of contract is known as a comprehensive asset management contract because the contractor is responsible for all maintenance activities within the right-of-way “from fence to fence, including the fence.” The RFP states that the contract will be awarded to the responsive and responsible vendor whose proposal receives the highest total score, which is composed of a price score and a technical score. The price score is weighted 30 percent, and the technical score is weighted 70 percent. The vendor proposing the lowest price received the full 30 points for the price score. The other vendors’ price scores were calculated through a mathematical formula based upon the percentage that the vendor’s price exceeded the lowest price. The technical score was based upon a subjective evaluation of the proposals in four broad categories: administration plan (weighted 20 points); management and technical plan (weighted 30 points); operation plan (weighted 30 points); and compliance plan (weighted 20 points). There are sub-categories in each of those categories, with a specific number of points assigned to each sub-category. Five evaluators independently reviewed the proposals. The evaluators –- Jennifer Perry, Howard Summers, David Holden, Lance Grace, and Robert Mannix -- were Department employees selected based upon their familiarity with the areas and services covered by the contract. All of the evaluators attended the pre-bid conference, which was mandatory for prospective bidders. No questions or concerns were raised at the pre-bid conference or at any point prior to submittal of the proposals regarding the evaluators having experience with the prior I-75 contract or having been involved in the preparation of the RFP. Three companies -- ICA, DBI, and VMS, Inc. (VMS) -- submitted responses to the RFP. ICA is a Tennessee corporation. DBI is a Pennsylvania corporation. Both companies provide asset management services in Florida and around the country, but ICA has more experience than DBI in providing comprehensive asset management services. The price offered by ICA -- $89,200,300.01 -- was the lowest of the three vendors that responded to the RFP; the price offered by DBI -- $92,630,739 -- was approximately 3.8 percent higher. As a result, ICA received a price score of 30 and DBI received a price score of 28.89. Three of the five evaluators -- Ms. Perry, Mr. Summers, and Mr. Golden -- scored DBI’s proposal the highest. Two of the evaluators -- Mr. Grace and Mr. Mannix -- scored ICA’s proposal higher than DBI’s proposal, but they scored VMS's proposal the highest. None of the evaluators scored ICA’s proposal the highest. DBI’s proposal received an average score of 85.40 from the evaluators, and ICA’s proposal received an average score of 82.96. As result, DBI received a technical score of 59.78, and ICA received a technical score of 58.07. When the price scores and the technical scores were combined, DBI received the highest total score of 88.67. ICA was the second-ranked vendor with a total score of 88.07. VMS was the third-ranked vendor with a total score of 86.12.3 On August 21, 2007, the Department posted notice of its intent to award the contract to DBI. The initial posting erroneously identified the winning vendor as “DeAngelo Brothers, Inc. T/A Aguagenix, Inc.” rather than DBI. The contract administrator, Cheryl Sanchious, explained that this was a clerical error caused by the Department’s computer system and that it has been corrected in the system. ICA timely filed a notice of protest and a formal written protest challenging the award to DBI. ICA posted a cashier’s check in the statutorily required amount in lieu of a protest bond. After the protest was filed, the Department entered into temporary emergency asset management contracts for the roadways and facilities covered by contract at issue in this case. ICA was given the contract for Broward and Collier Counties because it was already providing asset management in those counties under the predecessor to the contract at issue in this case, No. BC680. DBI was given the contract for the other counties, Sarasota, Lee, Manatee, Charlotte, and Desoto. It is undisputed that ICA’s proposal was responsive to the RFP in all material respects. The focus of ICA’s protest is four-fold. First, ICA contends that DBI’s proposal is not responsive because it did not affirmatively state that it would grant a first right of refusal to RESPECT of Florida (RESPECT). Second ICA contends that DBI is not a “responsible vendor” and that the Department confused the concepts of “responsiveness” and “responsibility” in its review of the proposals. Third, ICA contends that the evaluation committee failed to prepare a technical summary as required by the RFP, and that its failure to do so was material because it would have brought to light the discrepancies in Ms. Perry's scoring. Fourth, ICA contends that Ms. Perry's scoring was flawed and out of sync with the other evaluators in several respects. Each issue is discussed in turn. Responsiveness / RESPECT First Right of Refusal Section 8.2 of the RFP provides that “[a] responsive proposal shall perform the scope of services called for in this Proposal Requirements [sic] and receive a Technical Proposal score of at least seventy (70) percent of the maximum attainable points established for scoring the Technical Proposal.” Section 17.1 of the RFP provides that “[d]uring the process of evaluation, the District Contracts Office will conduct examinations of Proposals for responsiveness to requirements of the Proposal Solicitation. Those determined to be non-responsive will be automatically rejected.” Section 16.5 of the RFP requires the proposal to “[u]se only statements of what the Proposer will or will not accomplish” rather than “words such as may, might, should, etc.” Section 8.5 of the RFP authorizes the Department to “waive minor informalities or irregularities in Proposals received where such is merely a matter of form and not substance, and the correction or waiver of which is not prejudicial to other Proposers.” That section defines “minor irregularities” as “those that will not have an adverse effect on the Department’s interest and will not affect the price of the Proposal by giving a Proposer an advantage or benefit not enjoyed by other Proposers.” The Scope of Services for the RFP requires the contractor to “grant ‘Respect of Florida’ a first right of refusal” to provide maintenance services at rest areas. This was intended by the Department to be a mandatory requirement of the RFP, and was understood as such by ICA and DBI. RESPECT is a not-for-profit organization that employs disabled and disadvantaged individuals. RESPECT employees perform janitorial and grounds maintenance functions at rest areas, including one of the rest areas covered by the RFP. ICA’s proposal expressly states that “ICA will grant Respect of Florida first right of refusal on rest area janitorial work consistent with statewide maintenance practices.” DBI’s proposal does not include an affirmative statement that it will grant RESPECT a first right of refusal. However, DBI stated in its proposal that it “is currently in negotiation with [RESPECT] to expand their existing maintenance responsibilities for rest areas within the project limits” and that “DBI Services believes that expanding [RESPECT’s] responsibilities in the project is the right thing to do.” The absence of an affirmative statement in DBI’s proposal that it will grant RESPECT a first right of refusal was not material to the evaluators. For example, evaluator Robert Mannix testified that he “generally looked for more of the intent to give [RESPECT] the opportunity of making a bid rather than the specific language of right of first refusal.”4 Similarly Ms. Perry testified that she considered granting RESPECT a first right of refusal to be a requirement of the contract whether or not the contractor mentioned it in its proposal. Amy Burlarley-Hyland, director of asset management for DBI, testified that DBI intends to provide a first right of refusal to RESPECT and that, consistent with the statement in DBI’s proposal, DBI is “committed to expanding Respect’s responsibilities on this project.” She explained that she did not include an affirmative statement to that effect in the proposal because it is “a known requirement” that will be part of the contract by virtue of it being in the RFP. Mr. Rader, ICA’s executive vice president, testified that it is more costly to contract with RESPECT to provide maintenance services than to contract with another entity to provide those services. Ms. Hyland disagreed with that testimony, as did Ms. Perry. No documentation was provided to support Mr. Rader’s claim that it is more expensive to contract with RESPECT, and the evidence was not persuasive that DBI received a competitive advantage by not affirmatively stating in its proposal that it will grant a first right of refusal to RESPECT. The RFP does not require the vendor to expressly acknowledge and affirmatively agree to meet each and every mandatory requirement in the RFP. Indeed, if this were the test for responsiveness, ICA’s proposal would be nonresopnsive because it failed to expressly acknowledge and affirmatively agree to meet a number of the mandatory requirements in the RFP. DBI’s proposal complies with the intent of the RFP in regards to RESPECT. Its failure to specifically state that it will grant RESPECT a first right of refusal is, at most, a minor irregularity. Failure to Determine DBI’s Responsibility Responsiveness and responsibility are separate, but related concepts in the competitive procurement context. Section 287.012(24), Florida Statutes, defines “responsible vendor” to mean “a vendor who has the capability in all respects to fully perform the contract requirements and the integrity and reliability that will assure good faith performance.” Section 287.012(26), Florida Statutes, defines “responsive vendor” to mean “a vendor that has submitted a bid, proposal, or reply that conforms in all material respects to the solicitation.” In order to bid on certain Department contracts, a vendor has to be pre-qualified under Florida Administrative Code Rule Chapter 14-22. Pre-qualification serves as an advance determination of the vendor’s responsibility. Pre-qualification is generally not required in order to bid on maintenance contracts; bidders are presumed qualified to bid on such contracts. However, as noted in the Bid Solicitation Notice for the RFP, “certain maintenance contracts will contain specific requirements for maintenance contractor eligibility” if deemed necessary by the Department. This is such a maintenance contract. Section 7.1 of the RFP required the Department to determine whether the proposer is “qualified to perform the services being contracted.” That determination was to be made “based upon the[] Proposal Package demonstrating satisfactory experience and capability in the work area.” The RFP did not specify when or by whom this determination was to be made. The Department and DBI contend that the determination required by Section 7.1 is essentially a determination of whether the bidder is responsible, and that the determination is to be made by the evaluators during their scoring of the proposals. In support of that contention, the Department and DBI refer to Section 17.1 of the RFP, which provides that “[p]roposing firms must receive an average technical proposal score of at least (70) percent of the maximum attainable points established for scoring the Technical Proposal to be considered responsive.” Similar language is included in Section 8.2 of the RFP under the heading “Responsiveness of Proposals.” The interpretation of the RFP advocated by the Department and DBI is reasonable, and DBI’s proposal received an average score from the evaluators of 85.40, which exceeds the 70 percent threshold in Section 17.1 of the RFP. Indeed, each of the evaluators gave DBI more than 70 points for its technical proposal. The preponderance of the evidence presented at the final hearing supports the Department's implicit determination that DBI is “qualified to perform the services being contracted,” as required by Section 7.1 of the RFP. DBI has a 29-year history. It employs approximately 700 employees in 34 offices nationwide; it is the largest vegetation management company in the world; and it is ranked in the top five nationally in Pavement Maintenance Magazine. Even though DBI has less experience in comprehensive asset management contracts than does ICA, DBI has extensive experience in managing comprehensive activities under large contracts. DBI has managed over $400 million in performance- based contracts nationwide, including a $9 million comprehensive asset management contract with the Department in District 4 (US 27/Belle Glade area), and DBI’s director of asset management has extensive experience in highway and facility asset management in the private sector with DBI and VMS and in the public sector with the New York Department of Transportation. In sum, a determination that DBI is a responsible bidder was inherent in the Department’s decision to award the contract to DBI, which was based in large part on the technical score of its proposal by the evaluators, and the evidence presented in this de novo proceeding supports that determination. Therefore, even if, as ICA argues, the Department and DBI are improperly construing the word “responsive” in Section 17.1 of the RFP to mean “responsible,” ICA failed to prove that such error is material to the outcome of this proceeding. Failure to Prepare Technical Summary Section 17.1 of the RFP describes the evaluation process as follows: A Technical Evaluation Committee . . . will be established to review and evaluate each Proposal Package submitted in response to this Proposal Solicitation. The Committee will be comprised of at least five persons with background, experience, and/or professional credentials in relative service areas. The District Contracts Office will distribute to each member of the Committee a copy of each technical proposal. The Committee members will independently evaluate the Proposals on the criteria in the section below entitled “Criteria for Evaluation” in order to ensure that the Proposals are uniformly rated. The Committee will then assign points, utilizing the technical evaluation criteria identified herein and complete a technical summary. . . . . (Emphasis supplied). The District Contracts Office and/or the Project Manager/Technical Evaluation Committee will review and evaluate the price packages and prepare a summary of its price evaluation. Points will be assigned based on price evaluation criteria identified herein. During the process of the evaluation, the District Contracts Office will conduct examinations of Proposals for responsiveness to requirements of the Proposal Solicitation. Those determined to be non- responsive will be rejected. ICA contends that the evaluation committee failed to prepare a “technical summary,” which would have brought to light the scoring issues discussed below concerning Ms. Perry. The RFP does not define “technical summary” nor does it specify the form that the summary must take. The RFP does not specify how the evaluation committee as a whole would assign points to the proposals in light of the independent scoring mandated by Section 17.1 of the RFP. The evaluators did not assign points to the proposals as a committee, but rather independently scored the proposals. The evaluators did not meet as a committee to prepare a “technical summary.” Several of the evaluators testified that they considered the evaluation form that they completed for each proposal to be their “technical summary” for the proposal because the form included the scores assigned in each technical review category and summary comments about the proposal. The evaluators did not collectively discuss their scoring of the proposals after they completed their independent evaluations; they simply submitted their completed evaluation forms to Ms. Sanchious. Ms. Sanchious’ office prepared a spreadsheet summarizing the evaluators’ technical scoring of the proposals. The spreadsheet -– Joint Exhibit 33, titled “Proposal Evaluation/Breakdown Sheet” -- lists the scores awarded by each evaluator in each technical review category; calculates the total points awarded by each evaluator for each proposal; and calculates an “overall score” for each proposal by averaging the five evaluators’ scores for each proposal. This spreadsheet is more akin to a “technical summary” than is Joint Exhibit 21, which DBI and the Department contend is the “technical summary.” Indeed, Joint Exhibit 21 only includes the “overall score” and not the underlying data that was used to calculate that score. It was not unreasonable for the Department to calculate an “overall score” for each proposal by simply averaging the five evaluators’ scores for each proposal, and ICA failed to prove that the averaging being done by Ms. Sanchious’ office (instead of the evaluation committee) was a material deviation from the RFP. Indeed, ICA’s contention that discussion amongst the evaluation committee members to prepare the “technical summary” would have changed Ms. Perry’s scoring of ICA’s or DBI’s proposal is speculative, at best, in light of the findings below. In sum, the evaluation committee’s failure to prepare a “technical summary” as required by Section 17.1 of the RFP does not undermine the proposed award to DBI. Scoring by Jennifer Perry Ms. Perry was one of the five evaluators who reviewed the technical proposals submitted in response to the RFP. Ms. Perry is a licensed professional engineer. She has 10 years of work experience with the Department, and she currently serves as the assistant maintenance engineer for District 1. In that capacity, she is responsible for all forms of maintenance contracting in District 1, including routine maintenance and asset maintenance. Ms. Perry served for a time as the project manager for the existing asset management contract for I-75, which was held by ICA. As a result, she had the occasion to work with ICA employees and become familiar with ICA’s performance under that contract. There is no evidence that Ms. Perry is biased against ICA in any way. Indeed, she credibly testified that she had a good working relationship with ICA; that she had no major issues with ICA’s performance under the existing contract; and that she would have had no hesitation recommending that the contract be awarded to ICA if its proposal had received the highest score. Ms. Perry was heavily involved in the preparation of the RFP as a result of her position as assistant maintenance engineer for District 1. She was also involved in the selection of the evaluators. There is no Department rule or policy that prohibits a person from serving as an evaluator if he or she was involved in the preparation of the RFP. Likewise, the fact that Ms. Perry served as the project manager for the asset management contract held by ICA does not preclude her from serving as an evaluator. Indeed, Section 17.1 of the RFP specifically contemplates that the evaluators will have “background, experience, and/or professional credentials in relative service areas.” Similar language is contained in Section 287.057(17)(a), Florida Statutes. Ms. Perry spent between 10½ and 11 hours reviewing and scoring the proposals. She made detailed notes while she was scoring in order to capture her general impressions of each proposal and to serve as a reminder of issues to address with the vendor who was ultimately awarded the contract. Ms. Perry gave ICA’s proposal a score of 74. She gave DBI’s proposal a score of 86. Ms. Perry double-checked her scores before submitting her completed score sheets. She specifically went back over her scoring of ICA’s proposal after she noticed that she scored ICA lower than DBI and VMS because she thought she may have added wrong or overlooked something. She decided not to make changes to give ICA additional points just because she liked working with ICA. The main difference in Ms. Perry’s scoring of DBI's and ICA's proposals relates to Plan for Compliance with Standards (Plan for Compliance) section. She gave ICA 10 points for that section, and she gave DBI 20 points, which is the maximum available for that section. Each of the other evaluators gave ICA and DBI very similar scores in the Plan for Compliance section. The Plan for Compliance section describes the programs that the proposer intends to implement to ensure compliance with the applicable statutes, rules and Department policies. A proposer’s quality assurance/quality control (QA/QC) program is an important component of its plan for compliance. DBI gave the Plan for Compliance section significant emphasis because of the weight assigned to the section in the RFP. Ms. Burlarly-Hyland rewrote the section to make it more detailed because of her perception of its importance to the Department. ICA did not place as significant of an emphasis on the Plan for Compliance section in its proposal as did DBI. Indeed, ICA’s position in this case is that “a plan for compliance is quite standard and one would expect to see very similar plans and therefore very similar scores among the proposals.” DBI references its QA/QC program several times in the Plan for Compliance section, but the detailed description of the QA/QC program is included in the Management and Technical Plan section of DBI’s proposal. Ms. Perry relied on the description of the QA/QC program in the Management and Technical Plan section of DBI’s proposal in her scoring of the Plan for Compliance section. Similarly, in her scoring of the ICA and VMS proposals Ms. Perry did not limit her scoring of a particular section of the proposal to information presented in that section. Instead, she looked at the proposals in their entirety and “gave them credit . . . in any section that [she] felt it applied to because . . . [i]f they have a good idea, they need credit for it.” Ms. Perry explained that that she scored DBI higher than ICA in the Plan for Compliance section because, even though both proposals discussed their QA/QC program, DBI went into much greater detail about its program and its plan for compliance generally. Ms. Perry viewed the level of detail provided by DBI regarding its QA/QC program and its plan for compliance generally as an indication of the importance of these matters to DBI. Some of the material differences identified by Ms. Perry were DBI’s commitment to do its first QA/QC within the first three months instead of waiting six months as ICA proposed; DBI’s identification of a high-level person, the project manager, as being responsible for compliance; DBI’s commitment to provide its QA/QC reports directly to the Department; DBI’s “corporate culture concept” program that is similar to the Department’s “grassroots” program; DBI’s more detailed description of its training programs; and DBI’s commitment to have all of its herbicide applicators licensed by the state, not just in compliance with state law. Ms. Perry’s rationale for her scoring differences on the Plan for Compliance section is generally consistent with another evaluator’s “overall impression” that “the ICA proposal did not offer a lot of new innovation or continuous quality improvement over the level of performance that we had already experienced and . . . we were hoping to have in reletting the new contract rather than renewing the existing contract ”5 ICA also takes issue with Ms. Perry’s scoring of the ICA and DBI proposals in the DBE/RESPECT/Agency Participation section; the Proposed Facilities Capabilities section; the Routine/Periodic Maintenance Operations section; and the Rest Area Maintenance Operations section. Ms. Perry gave DBI’s proposal five points and ICA’s proposal three points for the DBE/RESPECT/Agency Participation section. She explained that she scored DBI higher than ICA in this section because DBI provided more detail on how it would help develop disadvantaged business subcontractors, including training them on compliance with Department standards and helping them obtain work. She recognized that ICA also had a subcontractor development program, but she was more impressed with DBI's proposal because “DBI really went into a lot more detail in what they were going to do.” Ms. Perry gave DBI’s proposal five points and gave ICA’s proposal three points for the Proposed Facilities Capabilities section. She explained that she scored DBI higher than ICA in this section because of the amount and type of equipment that DBI was going to make available for the contract and because of DBI’s commitment to put an office on the Alligator Alley corridor. Ms. Perry felt that the Alligator office was “very important” because that area is isolated and having an office in the area would make it easier for the contractor to respond quickly to problems. ICA’s proposal did not commit to put an office on the Alligator Alley corridor. Ms. Perry gave DBI’s proposal ten points and gave ICA’s proposal six points for the Routine/Periodic Maintenance Operations section. She explained that she scored DBI higher than ICA in this section because DBI’s proposal included a week- by-week maintenance plan that detailed the specific activities that DBI would be working on each week and it also included detailed charts identifying the efforts that DBI would undertake to meet the requirements of the Department’s maintenance program. The description of the maintenance plan in ICA’s proposal was not nearly as detailed, and Ms. Perry was so impressed with DBI’s maintenance plan that she provided copies of the plan to the other districts’ operation centers as an example of the type of detained planning that she felt the Department should move towards. Ms. Perry scored ICA and DBI the same for the Rest Area Maintenance Operation section. She explained that even though the proposals focused on different aspects of their rest area maintenance plans, the plans were roughly equivalent overall. For example, DBI committed to maintain the rest areas in accordance with the Department’s standard maintenance requirements and, like ICA, DBI will handle customer comment cards from rest areas through its QA/QC program. Ms. Perry scored ICA higher than DBI in areas that she found ICA’s proposal to be better than DBI’s proposal. For example, in the Identification of Key Personnel Section, she gave ICA four points and DBI three points; in the Contractor Experience section, she gave ICA the maximum five points and DBI two points; in the Bridge Inspection section, she gave ICA the maximum 10 points and DBI seven points; in the Incident Response Operations section, she gave ICA nine points and DBI eight points; and in the Bridge Maintenance Operations section, she gave ICA the maximum five points and DBI three points. Ms. Perry’s explanation of her scoring decisions was reasonable and supported by the preponderance of the evidence presented at the final hearing. The evidence fails to establish that Ms. Perry's scoring of the proposals was arbitrary, capricious, or otherwise improper.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department issue a final order dismissing the Formal Protest Petition filed by ICA, and awarding Contract No. E1G23 to DBI. DONE AND ENTERED this 14th day of December, 2007, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of December, 2007.
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 Based upon my observation of the witnesses and their demeanor while testifying, the stipulation of facts entered into among the parties, the documentary evidence received and the entire record compiled herein, I hereby make the following Findings of Fact: The name and address of the Petitioner is Golden Eagle Engineering Construction, Inc. (Golden Eagle) 1302 Northwest 33rd Street, Pompano Beach, Florida. The name and address of the Respondent is State of Florida, Department of Transportation, 605 Suwannee Street, Haydon Burns Bldg., Tallahassee, Florida. The name and address of the Intervenor is Toppino's, Inc. (Toppino's) Post Office Box 787, Key West, Florida. The Petitioner timely submitted a bid with regard to state project SR-5 (U.S-1), from the North end of State Bridge No. 900001 to Kennedy Drive in Key West, Budget Item No. 6116637, State Job No. 90010-3519 in Monroe County. The Petitioner was the apparent low bidder with a bid in the amount of $386,017.43. The Intervenor timely submitted a bid in regard to the same state road project (State Job No. 90010-3519). The Intervenor was the second low bidder with a bid in the amount of $398,132.10. The bid specifications required that bids submitted by contractors were to include a designation of at least fifteen percent (15 percent) of work to be performed by certified disadvantaged business enterprises (D.B.E.'s). The bid documents provided a separate form entitled "D.B.E./W.B.E. Utilization Form No. 1" on which the designation of work to the chosen D.B.E. was to be listed. The Respondent "certifies" DBE's in accordance with the standards and procedures set forth in Rule 14-78, Florida Administrative Code. Along with project specifications and other information concerning the proposed job, the Respondent provides hopeful contractors with a D/WBE Directory which lists qualified DBE and WBE businesses. The latest directory prior to the bid opening on the contract at issue here was published by D-O-T in October of 1986. Respondent's Bureau of Minority Programs maintains a current register and will advise any bidder so requesting whether or not a firm qualifies as a DSE or WBE. The invitation to bid provided that the contractor's bid submission must include the following information: The names and addresses of certified DBE and WBE firms that will partici- pate in the contract. Only DBEs and WSEs certified by the Department at the time the bid is submitted may be counted toward DBE and WBE goals. * * * (4) If the DBE or WBE goal is not met sufficient information to demonstrate that the contractor made good faith efforts to meet the goals. The DBE's utilized by the Petitioner to satisfy the requirements of the bid were as follows: (a) Millit $8,972.60 Highway Concrete Corporation $45,330.60 A. Falero Trucking, Inc. $21,500.00 The Petitioner's Bidder's Utilization Form disclosed an apparent 19.5 percent DBE participation. The Petitioner honestly believed that its bid proposal met and exceeded the DBE participation goals specified for the contract. The sealed bids were opened on October 29, 1986. The Respondent, in its initial review of Petitioner's bid, discovered that A. Falero Trucking, Inc., (Falero) was not a certified DBE. On October 31, 1986, Ms. Heather Calligan, majority shareholder of Golden Eagle, wrote Respondent a letter in which she stated that the owners of Falero had assured Golden Eagle that Falero was a certified DBE firm, that they had a current DBE certification letter and that their exclusion from the D/WBE Directory was an oversight on the part of Respondent. Ms. Calligan further advised Respondent that she believed Falero's assertion that the firm was DBE certified because her company is W.B.E. certified and had been omitted from the D/WBE Directory in error in the recent past. Further, Ms. Calligan stated that she had been acquainted with the owners of Falero on a personal and business basis for several years and did not believe that they would mislead her. On November 3, 1986, Ms. Calligan wrote another letter to Respondent wherein she stated that she had contacted Falero concerning their certification and that Falero could not locate their certification letter. Ms. Calligan requested that Golden Eagle be allowed to substitute F.R.E. Construction Company (F.R.E.), a DBE certified company for Falero, should Falero not substantiate its claim of being currently DBE certified. At all times material hereto, Amable Falero and Jose M. Rodriquez owned 100 percent (50 percent each) of the stock of Falero and 70 percent (35 percent each) of the stock of FRE. Falero and FRE, although independent companies, operate from the same business location, have the same management and office staff and use some of the same employees interchangeably. On November 5, 1986, the Respondent received a letter from Mr. Rodriquez, co-owner of Falero. Mr. Rodriquez stated that he personally advised Golden Eagle that Falero was a certified DBE firm and that he had a letter in his files substantiating his claim. Mr. Rodriquez advised Respondent that he had made this representation to Golden Eagle in error. When Respondent discovered that Falero was not a certified DBE, the bid documents were forwarded to its Good Faith Efforts Review Committee for a determination of Petitioner's good faith efforts. The Good Faith Efforts Committee was formed in 1984 and its primary responsibility is to make an objective evaluation of good faith efforts of prime contractors who submit bids to D-O-T. Rule 14-78.03(2)(b)4, F.A.C. lists several factors that the Respondent is required to consider in evaluating a contractor's good faith efforts. (Those factors are enumerated in detail in the Conclusions of law Section herein). The Respondent's practice and procedure is that it will conduct a limited review of the good faith evaluative criteria listed in the Rule even where the contractor has not included a "good faith efforts package" in its bid submission demonstrating good faith efforts. In such cases, the Respondent usually finds the bid non-responsive because of failure to provide documentation of good faith efforts. However, circumstances could exist where the Good Faith Efforts Committee may find good faith in the absence of any good faith efforts documentation specifically submitted by the contractor in its bid proposal. Thus, pursuant to the practice of the Good Faith Efforts Committee, the absence of information demonstrating good faith efforts within the bid proposal does not preclude its evaluation of the contractors' good faith efforts to achieve the goals. The Good Faith Efforts Committee completed a report form entitled "Good Faith Efforts Evaluation" in regard to Petitioner's bid. All of the required statutory criteria was listed on the form. In response to criteria IV ("whether the DBE or WBE goal was met by other bidders") the Respondent entered: "Goal met by other bidder." In response to criteria VII ("whether the contractor elected to sub-contract types of work that match the capabilities of solicited DBE's of WBE's"), the Respondent entered: "Bidder used quotes from three (3) areas." In response to criteria IX ("whether the contractor has on other contracts within the past six (6) months utilized DBE's and WBE's") the Respondent entered: "No projects in the last six (6) months." In response to all of the other criteria, the Respondent entered: "bidder did not submit any documentation", "no documentations", "did not provide documentation" or simply "none submitted". During the Good Faith Efforts Committee review of the Petitioner's bid, the committee was aware that Falero had been a certified DBE in the past, that the Petitioner's bid included an apparent 19.5 percent DBE participation with Falero and that without Falero the Petitioner achieved over 90 percent of the DBE participation goals. Based on the information which it had, the Good Faith Efforts Committee was apparently satisfied that such information did not establish good faith efforts and recommended that the bid be declared non-responsive based on the Petitioner's failure to include good faith efforts documentation with its bid proposal. On November 12, 1986, the report of the Good Faith Efforts Committee was forwarded to the Technical Awards Committee, and based on that report, the Technical Awards Committee voted unanimously to reject the Petitioner's bid as non-responsive and to recommend awarding the contract to Intervenor. Respondent's Final Review Committee, the Contract Awards Committee then decided to declare Petitioner's bid non- responsive and to award the contract to Intervenor. On November 18, 1986, the Respondent mailed a Notice of Switch in Apparent Low Bidder to all parties indicating that Golden Eagle, the apparent low bidder, had been declared non-responsive due to failure to meet DBE requirements and proposing to award the contract to Intervenor, the second low bidder. GOLDEN EAGLE'S HONEST MISTAKE While compiling its bid, one of Petitioner's employees noted that Falero was not listed in the D/WSE Directory. The Petitioner contacted Falero and was informed by one of Falero's owners that Falero was a certified DBE and had a current certification letter. Ms. Heather Calligan, the Petitioner's majority stock holder, was satisfied in her belief that Falero was a certified DBE for several reasons. First, Ms. Calligan was personally acquainted with the owners and knew them to have been DBE certified by Respondent in the past. In addition, Golden Eagle has been a WBE since 1979 and Ms. Calligan was aware that her company's name had been occasionally left off of the D/WBE Directory during times it was certified and should have been included. Based on those factors, the Petitioner honestly believed that Falero was DBE certified and did not call the Department's Minority Programs office to verify Falero's DBE status nor request that Falero produce its letter of certification. FALERO'S STATUS Falero was certified by the Respondent on April 4, 1983, as a minority business enterprise for a period of one year. On May 14, 1984, the company was re-certified for another one year period. On November 20, 1985, the Respondent received an application for re- certification as a disadvantaged business enterprise from Falero. After an initial review of the application, the Respondent wrote Falero a letter dated December 3, 1985 requesting that the company provide: The current financial statement or a breakdown of current assets and liabilities and, Copies of the registration of all vehicles owned by the company. The policy of the Respondent with regard to incorrect or incomplete information submitted by DBE's is to acknowledge receipt of the information and to advise the DBE as to what information should be submitted. The file is then placed in an "abeyance" status pending receipt of the requested information. In October of 1986, Falero had still not fully responded to the Respondent's letter of December 3, 1985 with the complete information requested. After its initial request for additional information, the Respondent made no further request for additional information from Falero with regard to the November 20, 1985 application for re-certification. Falero finally supplied all of the information requested in the December 3, 1985 letter to Respondent in December 1986 in conjunction with a new application for certification. Thereafter, Falero was certified as a DBE in January 1987. Between May 1985 and January 1987 Falero was not a certified DBE and was not included on any of the D/WBE directories prepared by the Respondent during that period.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that: The bid of Golden Eagle Contractors, Inc. on State Project No. 90010- 3519 be declared non-responsive; The contract for State Project No. 90010-3519 be awarded to Intervenor; and The protest of Golden Eagle Contractors, Inc. be DISMISSED. DONE and ORDERED this 18th day of March, 1987 in Tallahassee, Leon County, Florida. W. MATTHEW STEVENSON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of March, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-0250BID 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. Rulings on Proposed Findings of Fact Submitted by the Petitioner Adopted in Finding of Fact 2. Adopted in Finding of Fact 1. Adapted in Finding of Fact 3. Adopted in Finding of Fact 4. Adopted in Finding of Fact 6. Adopted in Findings of Fact 7 and 10. Adopted in Finding of Fact 10. Adopted in Finding of Fact 5. Adopted in Finding of Fact 11. Adopted in Finding of Fact 24. Addressed in Procedural Background Section. Addressed in Procedural Background Section. Addressed in Procedural Background Section. Addressed in Procedural Background Section. Addressed in Procedural Background Section. Adopted in Finding of Fact 14. Adopted in Finding of Fact 25. Adopted in Finding of Fact 26. Adopted in Finding of Fact 26. Adopted in Finding of Fact 29. Adopted in Finding of Fact 31. Adopted in Finding of Fact 14. Rejected as subordinate. Adopted in Finding of Fact 13. Rejected as not supported by the weight of the evidence. Adopted in Finding of Fact 14. Adopted in Finding of Fact 27. Rejected as subordinate. Rejected as subordinate. Adopted in substance in Findings of Fact 26 and 27. Rejected as subordinate. Adopted in Finding of Fact 19. Rejected as subordinate. Rulings on Proposed Findings of Fact Submitted by the Respondent Adopted in Findings of Fact 4 and 7. Adopted in Findings of Fact 5, 10 and 11. Addressed in Procedural Background Section. Adopted in substance in Findings of Fact 19, 20 and 21. Adopted in substance in Findings of Fact 9 and 24. Adopted in substance in Findings of Fact 20 and 21. Adopted in substances in Finding of Fact 19. Adopted in substance in Findings of Fact 17, 18, 19 and 20. Adopted in substance in Finding of Fact 21. Adopted in substances in Finding of Fact 21. Adopted in substance in Findings of Fact 13 and 14. Rejected as a recitation of testimony. Rulings on Proposed Findings of Fact Submitted by the Intervenor Adopted in substance in Findings of Fact 7, 9 and 24. Adopted in substance in Finding of Fact 7. Adopted in substance in Findings of Fact 7 and 9. Addressed in Conclusions of Law Section. Adopted in substance in Findings of Fact 10, 11 and 14. Adopted in substance in Findings of Fact 25 and 31. Adopted in substance in Findings of Fact 24 and 31. Adopted in substance in Finding of Fact 26. Partially adopted in Finding of Fact 30. Matters not included therein are rejected as argument and/or subordinate. Addressed in Conclusions of Law Section. Adopted in substance in Findings of Fact 11, 12, 20 and 21. Adopted in substance in Finding of Fact 21. Rejected as argument. Partially adopted in Finding of Fact 24. Matters not contained therein are rejected as argument. Partially adopted in Findings of Fact 13 and 14. Matters not contained therein are rejected as argument. Rejected as argument. COPIES FURNISHED: Melissa Fletcher Allaman, Esquire Post Office Box 1170 Tallahassee, Florida 32302-1170 Jay O. Barber, Esquire Department of Transportation 605 Suwannee Street Tallahassee, Florida 32301 John O. Williams, Esquire 1343 E. Tennessee Street Tallahassee, Florida 32308 Kaye N. Henderson Secretary Department of Transportation Haydon Burns Bldg. Tallahassee, Florida 32301 A. J. Spalla, Esquire Department of Transportation Haydon Burns Bldg. Tallahassee, Florida 32301
The Issue The issues in this proceeding are whether Gilbert’s bid proposal was responsive to the Department of Transportation’s bid proposal, and whether the Department of Transportation (Department) erred in accepting the bid of Gilbert. State alleged that Gilbert failed to comply with the DBE bid information submittal requirements of Rule 14-78.003(2)(b)3.a., Florida Administrative Code, in filing the DBE forms for the project.
Findings Of Fact State and Gilbert, among other prequalified bidders, submitted timely bids for State Project No. 86075-3423/03175- 3426, which involves the replacement of toll plazas on State Road 93 (also known as Alligator Alley) in Collier and Broward Counties. The project has been referred to in this proceeding as “the Alligator Alley project.” (Agreed Facts) The Department has adopted Rule Chapter 14-78, F.A.C., to govern utilization of DBE’s on state and federally funded construction projects. The specifications for the Alligator Alley project also include Special Provisions for Disadvantaged Business Enterprises, which incorporate many of the requirements of Rule 14-78.003, Florida Administrative Code. Consistent with Chapter 14-78, Florida Administrative Code, and the Special Provisions, the Department assigned Disadvantaged Business Enterprise (DBE) goals to the Alligator Alley project requiring bidders to subcontract 4% of the work to black DBE’s and 8% of the work to non-minority women DBE’s. (Agreed Facts) State and Gilbert submitted their sealed bid packages to the Department before the advertised deadline for bids, 10:30 a.m. on August 28, 1996. A Department review of the amounts bid showed that Gilbert was the apparent low bidder, submitting a bid totaling $9,153,215.07, while State was the apparent second-low bidder, submitted a bid totaling $9,566,051.25. (Agreed Facts) Consistent with Rule 14-78.003(2)(b)3., Florida Administrative Code, and the bid specifications, bidders were permitted to submit DBE Utilization Summary Forms and DBE Utilization Forms within 72 hours after submittal of their bid packages. State and Gilbert timely submitted DBE Utilization Summary Forms, showing the total amount committed to be subcontracted to DBE’s in order to meet each of the DBE goals set for the contract. The two companies also timely submitted DBE Utilization Forms that purported to commit each bidder to subcontract with DBE’s in amounts that totaled those shown in the DBE Utilization Summary Forms. (Agreed Facts) Gilbert’s DBE Utilization Summary Form stated that Gilbert would subcontract $369,000 (or 4% of its total bid) to black DBE’s and $734,600 (or 8% of its total bid) to non-minority women DBE’s. State’s DBE Utilization Summary Form stated that State would subcontract $400,000 (or 4% of its total bid) to black DBE’s and $800,000 (or 8% of its total bid) to non-minority women DBE’s. (Agreed Facts) The Special Provisions of the bid specifications that address the DBE Forms provide as follows: The contractor’s submission shall include the following information (submitted on Form Nos. 275-020-003 Utilization Summary and 275-020- 004 Utilization Form): The names, addresses of certified DBE firms that will participate in the contract. Only DBEs certified by the Department at the time of the bid may be counted toward DBE goals. A description of the work each named DBE firm will perform. The dollar amount of participation by each named DBE firm. If the DBE goal is not met, sufficient information to demonstrate that the contractor made good faith efforts to meet the goals. (Agreed Facts) [Emphasis Supplied] Gilbert submitted DBE Utilization Forms for each of its DBEs stating the DBE’s name, address, telephone number, the signature of the DBE or authorized individual. Gilbert submitted a DBE form for Alco Trucking, a firm owned by a Black male, which stated the value of the subcontracting work to be done as $369,000 without reduction or qualification, and stated regarding the work to be done as follows: Item No. Description of Work (Note if item qualifies for supplier) Various Hauling, aggregates, fill, on site trucking Gilbert submitted a DBE form for Swiftline Trucking, a firm owned by a non-minority female, which stated the value of the subcontracting work to be done as $82,200, without reduction or qualification, and stated regarding the work to be done as follows: Item No. Description of Work (Note if item qualifies for supplier) Various Hauling, aggregates, fill, on site trucking Gilbert submitted a DBE form for Jayalden Enterprises, a firm owned by a non-minority female, which stated the value of the subcontracting work to be done as $264,000, without reduction or qualification, and stated regarding the work to be done as follows: Item No. Description of Work (Note if item qualifies for supplier) 735-74-A Toll Plaza (Partial) 735-74-B Toll Plaza (Partial) Gilbert submitted a DBE form for Precision Contracting, a firm owned by a non-minority female, which stated the value of the subcontracting work to be done as $305,000, without reduction or qualification, and stated regarding the work to be done as follows: Item No. Description of Work (Note if item qualifies for supplier) 544-75-5 Impact Attenuator Vehicular (Partial) 102-1-A MOT (Partial) On each DBE form, Gilbert filled in the line for an “amount to be paid to DBE Subcontractor” and the total committed “toward the DBE goal,” but did not fill in the line for “Amount to be paid to DBE Supplier.” (Agreed Facts) State submitted DBE Utilization Forms for each of its DBEs stating the DBE’s name, address, telephone number, the signature of the DBE or authorized individual. State submitted a DBE form for Metro Engineering Constractors, Inc., a Black owned business, which stated the value of the subcontracting work to be done as $400,000 without reduction or qualification, and stated as follows: Item No. Description of Work (Note if item qualifies for supplier) 120-6 Embankment and 285-701 Limerock Base and Haul & Supply Materials 285-709 Limerock Base and Earthwork State submitted a DBE form for Freedom Pipeline Corporation, a non-minority female owned business, which stated the value of the subcontracting work to be done as $800,000 without reduction or qualification, and stated as follows: Item No. Description of Work (Note if item qualifies for supplier) 121-70 Flowable Fill 400-1-2 Class I Concrete Endwalls through Storm Drainage 514-71-3 Plastic Filter Baric (Riprap) and 1513120-118 Pipe Ductile Iron Pusyh on Joint 8” and 415-1-3 Reinforcing Steel Retaining Walls Retaining Walls and 635-1-11 Pull & Junction Boxes through Sewer & Water 1648100-7 Misc Water Fixt Blow Off Assy 285-701 Limerock Base and Haul & Supply Materials 285-709 Limerock Base and Earthwork State indicated on its DBE forms that both contractors were suppliers of materials and indicated that the total amount of the contract in both cases was to go to the DBE contractor. The Department’s Minority Programs Office is responsible for the implementation of the Department’s DBE program and reviews the DBE Utilization Forms submitted with bids. Kenneth Sweet, who is employed in the Minority Programs Office, had responsibility for reviewing Gilbert’s DBE Utilization Forms and determined that they complied with Rule 14-78.003(2)(b)3.a., Florida Administrative Code, and the Special Provisions of the bid specifications addressing DBE’s. The Department did not contact Gilbert or any of the DBE’s listed on Gilbert’s forms to confirm or obtain clarification of the information stated thereon. (Agreed Facts) The Department posted the bid tabulations for the Alligator Alley project, showing an award to Gilbert as the lowest responsive bidder. State filed its Notice of Protest with the Department’s Clerk of Agency Proceedings on September 23, 1996, 1996, and filed its Formal Protest on October 2, 1996. After this matter was referred to the Division, Gilbert filed its Petition to Intervene on October 22, 1996, which was granted on October 25, 1996. (Agreed Facts) It was stipulated that all of the DBE’s reflected in the DBE Utilization Forms submitted by Gilbert and State were certified DBE’s. (Agreed Facts) Gilbert’s DBE Utilization Forms were submitted to the Minority Programs Office within 72 hours after the project letting and the forms were signed by DBE representatives. The Department is dependent upon the accuracy of the information provided by the bidders to assess DBE participation. Gilbert and one of its DBE’s did not have the identical understanding of the exact scope of the work to be performed by the DBE which might impact how much of the value of the contract would be credited for DBE participation; however, there is no evidence of collusion or fraud in any of the quotes. The Department credits 60% of the value of a contract when the DBE contractor is a supplier of materials, and 100% of the value of the contract when the DBE Contractor furnishes and installs the materials designated as furnish and install items in the specifications. The toll booths and attenuators were not furnish and install items. Gilbert included 100% of the value of the contracts with Alco, Swiftline, Precision and Jayalden as DBE participation. The Department accepted Gilbert’s representations as presented in its DBE forms without questioning what services were being performed or provided by these DBE Contractors. Ken Sweet of the Department’s DBE programs office testified. The Department's justification for not examining the DBE proposals more closely was that the Department requires the prime contractor to adhere to the amount of the DBE work as presented in the forms. While this may be sufficient to maintain the integrity of the DBE program, it is insufficient review to insure that the contractor has complied with the rules for crediting DBE participation and to insure the competitiveness of the bid process. Although Gilbert asserted at hearing that its subcontractors, Swiftline and Alco, would be supplying and placing the materials, it did not so state in its forms. The forms for Alco and Swiftline said, "hauling, aggregates, fill, and on site trucking." There was no basis for the Department to conclude that the contractors were supplying and placing the materials. Further, there was no evidence that Alco and Swiftline were "regular dealers" in fill or aggregates, or identification of their sources of aggregate and fill. Gilbert indicated no item numbers with regard to Alco and Swiftline. If item numbers had been provided, the status of the work as furnish and install items could have been determined. Only two verb forms were used in the "Description of Work" portion of form: “hauling” and “trucking”. Petitioner showed that the value of the contract exceeded the reasonable value of the trucking and hauling to be done on the project. At hearing, Gilbert asserted that Swiftline and Alco were suppliers. This evidence may not be considered. The Department should have limited Gilbert's DBE credit to the value of the hauling and trucking. This was the only work described in the DBE utilization forms. Although the value of the trucking and hauling alone was not proven, it obviously was less than the full contract amount. Gilbert had stated the DBE participation amounts at the minimum required amount. Any reduction of amount creditable to a Black minority contractor would have placed Gilbert below the four percent goal stated in the specifications. The Department credited Gilbert with 100% of the value of the contract with Jayalden towards DBE participation. The DBE Utilization Form for Jayalden does not indicate Jayalden is a supplier or regular dealer. The form does not state Jayalden would install the toll booths. A contractor may obtain 100 percent credit for DBE participation for materials provided by a DBE manufacturer, a DBE regular dealer or a DBE who furnishes and installs items designated furnish and install items in the specifications. The Department knew there were only two approved manufacturers of toll booths. Jayalden was not one of the manufacturers. Neither of the manufacturers were DBE certified. Gilbert's DBE forms did not identify Jayalden as a "regular dealer," and the toll booths were not designated furnish and install items in the specifications The Department must approve additional items as furnish and install items if not designated in the specifications. The Department did not add the toll booths as furnish and install items. The evidence shows that the manufacturer offered to provide the toll booths and install the toll booths for $75,000 each. Jayalden agreed to acquire, ship and install the booths for $76,000 each. A question arises regarding the commercially useful function Jayalden was performing if the manufacturer would furnish and install the nine booths for $75,000 each. In response to the question regarding the commercially useful function Jayalden performed, evidence was presented that Jayalden assumed responsibility for this acquisition and installation of the booths and Jayalden relieved the contractor of "managing" that part of the project. The rules required the Department's approval of the commission or fee paid for management services of this type. The rules do not permit credit for DBE participation of the value of the toll booths. This would reduce the credit for minority non- Black participation by Jayalden from $684,000 to $9,000, less than the required non-Black minority DBE participation. The evidence regarding Precision established Precision was a regular dealer in traffic control devices, and contracted to supply, service and install these devices on the project. The DBE Utilization Form for Precision indicates the Item No. and indicates "Impact Attentuator Vehicular (Partial)" and "MOT (Partial)". Precision's form provided sufficient data to justify being given 100% credit. Gilbert's other DBE forms did not present any special condition warranting increasing DBE credit. The DBE Utilization Forms as submitted by Gilbert failed to mention or identify any special conditions or circumstances affecting the amount of credit Gilbert received for DBE participation. The facts submitted at hearing reveal that at least one special condition or circumstance was applicable to each subcontractor in order to justify crediting Gilbert with 100% of the value of the contract with the DBE toward DBE participation. With exception of Precision, the information was provided only after the bid opening and improperly supplemented the original proposal. The Department had previously approved DBE Utilization Forms providing the same type of information as contained on Gilbert’s DBE Utilization Forms. Had the Department reviewed the proposals as required, Gilbert would have been determined not to have met the DBE specifications. Gilbert did not justify its failure to meet the DBE participation because it facially had met the DBE criteria under the Department's existing policies. In contrast, the DBE form submitted by State for Metro indicates the items numbers involved, and that Metro will “Haul & supply materials and earthwork.” Similarly, the work to be performed by Freedom Pipeline was clearly identified and sufficient information provided to advise the Department of any special conditions affecting the credit to be awarded for DBE participation. One can readily ascertain that the subcontractor is a hauler, supplier and installer of the limestone, and that the contractor should receive 100% credit for minority participation of the contract's value. State was able to meet the DBE participation specification.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is, RECOMMENDED: That the Department enter its Final Order finding that Gilbert was non-responsive; however, because Gilbert followed the existing policies of the Department which were erroneous, it is recommended that the Department reject all bids and republish the invitation to bid to afford interested contractors an opportunity to file new proposals. DONE and ENTERED this 3rd day of February, 1997, in Tallahassee, Florida. STEPHEN F. DEAN 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) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of February, 1997.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and upon consideration of the proposed final orders, the following relevant facts are found: Petitioner, J. B. Coxwell Construction, Inc., is an Asphalt Construction Company which is certified as a DBE by the Florida Department of Transportation. The basis of Coxwell's DBE certification is the claimed American Indian heritage of John B. Coxwell. An example of the dilemma faced by the Department in administering the DBE certification program, which illustrates the need for substantive criteria defining "Indian" as proposed in the amendment, is the DBE certification issued to Coxwell. Coxwell is certified based on his membership in the Machis Lower Creek Tribe of Alabama. The Department does not dispute that Mr. Coxwell is a member of the Machis Tribe. However, the only document by Coxwell which substantiates or evidences his Indian origin and heritage consists of a family pedigree chart obtained from the chief of the recently formed Machis Tribe. Coxwell has no other document evidencing that he has ever held himself out to be an Indian. As to the pedigree chart, he did not provide any input or information but relied on the chief's filling out the family tree. The space on the pedigree document which directs that he "Give the name of record or book where this information was obtained" is blank and gives no source. The pedigree document is the total documentary basis of Coxwell's membership in the Machis Tribe and the tribal membership card is the basis for the recognition of Coxwell as an Indian by the State of Alabama. Prior to applying for membership as a Machis, Coxwell has never held himself out to be an Indian. Growing up in Alabama, he represented that he was white and his birth certificate registered his parents and him as being white. He never suffered discrimination and knew of no Indian tribes by name when he was growing up and he was never known in the community as an Indian. Coxwell's firm is pre-qualified as a prime contractor under Section 337.14, Florida Statutes, based on his construction experience, personnel, equipment, and financial capability. The firm has grossed over $10,000,000 in the past three years and competes on the Department's prime contracts. Coxwell attributes his company's success to his approximate 30 years in the business, hard work and learned experience, most of which was acquired prior to being certified as a DBE Coxwell grew up in Southeast Alabama during a time when racial discrimination ran rampant against Indians. As a result, Coxwell hid the fact that he was of Indian heritage to avoid being discriminated against. Joe Hill, of Cherokee and Creek Indian heritage, currently operates three certified DBE Indian companies, to wit, J. E. Hill Contractor (concrete construction), Hill Milling (asphalt removing-milling), and Hill Marketing, a paint striping company. The Cherokee and Creek Indian tribes are not recognized by BIA. Approximately 75% of Hill's business is DBE related work and a substantial amount of that work would be eliminated if he is decertified as a DBE pursuant to the proposed rule. Hill, like Coxwell, is currently certified by the Department as a prime contractor and does about $10,000,00 in work annually with the Department. Hill will lose what he considers to be a DBE monopoly on the type of services his companies perform on Department contracts. Hill was in the road construction business long before the DBE program was formulated, as his father formed the business in the early 1930's and he has accumulated substantial expertise. Hill will be able to continue contracting on Department prime and subcontracts if he is decertified as a DBE. Glen Powell, a certified DBE, is a member of the North Bay Clan Indian tribe. Powell obtained his DBE certification in 1982 based on his status as an American Indian. The North Bay Clan Indian Tribe is not recognized by BIA. Powell's experience is that Indians are treated singularly different than any other minority in the U.S. In addition to his DBE business, Powell owns a real estate company, is 50% owner in Seminole Properties, and owns a 38 unit apartment complex. He also is president and 100% owner of First American Contracting. Powell will lose a substantial portion of his business and will lay off employees if he is decertified as a DBE. In fact however, due to the inherent nature of competition, Mr. Powell has recently laid-off one third of his work force. Gulf Asphalt Corporation (Gulf) does prime contracting work for DOT in Florida and is a member of the FTBA. Carol Atkinson, a resident of Panama City, has been employed by Gulf for 20 years. She is in charge of bid preparations and other financial work for Gulf. She is responsible for soliciting bids from DBE subcontractors in order to meet the stated DBE goals on DOT jobs. Atkinson is concerned that Gulf currently relies on six Indian DBE firms which would be affected by the proposed rule change. In fact, the Department's DBE directory indicates there are a multitude of DBE firms in the panhandle area upon which prime contractors such as Gulf can draw upon for satisfying the DBE goals. William Brown Williams, the chairman of the Northwest Florida Creek Council, is an advocate for non-federally recognized Indian people. As an advocate, Williams has encountered problems in administering benefits for Indians and in determining who are bona fide Indians eligible, for benefits. Williams was involved in an unsuccessful petition in 1977 to the BIA for recognition of the Creek Tribe of Indians. Membership in federally recognized tribes, as in non-federally recognized tribes, is a tribal determination. Williams is aware of the problems in administering programs which target Indians as beneficiaries. As an example, in the Federal Title IV Program, any person who declares himself an Indian can secure Title IV money for his school system. Upon Williams learning of the proposed rule in early July 1988, he visited with Juanita Moore, the Bureau Chief of the Office of Minority Programs with FDOT, and provided input in formulating the proposed rule. Teresa Stewart, Director of the Department's Division of Administration, participates in the policy directives of the Bureau of Minority Programs, as well as six other Bureaus. In the transition from her previous job to Director, Stewart was briefed in January 1987 by her predecessor regarding the bureau's problems in determining ethnic identity of Indians. The bureau has not experienced such problems in identifying other minorities' ethnic origins. In response to the Indian certification program, Stewart consulted Joe Queton, Executive Director of the Governor's Council on Indian Affairs, and reviewed the federal recognition process administered by the BIA. Queton is aware of the potential for abuse by use of the current rules' undefined term "American Indian". Queton advises other state agencies regarding their MBE programs and has advised the Department's bureau over a period of several years. Under the current rule, there is no single document that can universally demonstrate Indian heritage. Absent a clear definition of American Indian, those who actually experienced economic discrimination due to their identity as Indians are competing for the DBE program benefits with persons who grew up identified as White, but now claim DBE certification benefits by tracing undefined Indian heritage. The Governor's Council on Indian Affairs recommends policy relating to Indians in Florida. Queton has expressed a desire that, to the extent that Florida recognizes Indian tribes, the State recognize tribes which are (1) indigenous to Florida and (2) recognized by the BIA. Queton is a member of the federally recognized Kiowa tribe of Oklahoma. The council's purpose is to work with and provide assistance to Indians. Without established criteria, the potential for abuse is great for non-Indians to participate in the DBE program. Queton opines that DBE recognition should be based on careful anthropological, genealogical and historical review to appropriately identify such tribes. Currently, Florida does not recognize any tribes officially. The Department's concern in accepting other states' recognition of Indian Tribes is the wide variety of practices of other states, many of which have no substantive criteria. J. Anthony Paredes, Chairman of the Department of Anthropology, Florida State University, is an anthropologist who has extensively authored, published, and, researched Indian matters. Currently serving as president of the Southern Anthropological Society, he is on the editorial board of the American Indian Culture and Research Journal. He has published papers regarding Indian matters in such journals as Current Anthropology, American Anthropologist, Human Organization, The Journal of the Society for Applied Anthropology, numerous chapters in books and has edited a book on contemporary Chipohoi Indians. Paredes has performed extensive field and archival research on the Alabama cultures of the Poarch Creeks and Machis Indian communities. He actively participated in the research which was used in the successful petition for federal recognition made in 1980 to the U.S. BIA by the Alabama Poarch Band of Creeks. In his research of the Poarch Creeks, Paredes took hundreds of hours of oral testimony, made extensive searches of county records, marriage records, World War I selective service records, land records, and other federal records of all kind. He also compiled extensive genealogical interview results. Subsequent to his extensive research in Alabama and his previous ethno- historical work of the Creek nation on behalf of the Poarch Creeks, the EIA hired Dr. Paredes to research the ethno-history and ethnology of the Machis Lower Alabama Creek Indians, and to provide BIA a background report without reaching conclusions. He was commissioned to find all the evidence available that indicated identification of the Machis as an Indian group, and of their existence as a community from their first known historical existence to the present day, and find, if there existed, any form of Machis tribal government or political authority. Dr. Paredes found no evidence of identity of the Machis as Indians from the early 1800's to the present. As to the Machis, there was an identifiable family group of relatives settled in Alabama, who were not linked in any way to the Indians of southeastern Alabama. The first recorded reference to the Machis was found in a 1982 newspaper article. Based on Dr. Paredes' field and archival research, he found nothing to identify any of the named ancestors of the current Machis as Indians. Dr. Paredes found no evidence of descent by the Machis from historic Indian groups. The BIA has established substantive criteria for recognition of Indian tribes. Their recognition provides substantive rational criteria for administering the Department's proposed DBE rule as to Indian applicants. Determination of an individual's membership in BIA-recognized tribes, is made by the tribe. The BIA tribal recognition application process, may take 3 or 4 years in research and investigation. After initial petition, the BIA branch of Acknowledgment may seek additional information or verification in reviewing petitions. BIA utilizes a scientific and thorough review to assure validity of the final determination of claimants to Indian tribe states and Indian ethnicity. The BIA does not close membership rolls of a federally recognized tribe since that matter is controlled by the tribe. In addition to Dr. Paredes' investigation of the Machis as an Indian tribe, the BIA also sent anthropologists to Alabama who conducted their own investigation of the Machis. BIA treats each application seriously and reviews each at face value. The federal recognition process is not an adversary process. Costs of petitioning for BIA recognition are defrayed by the Administration for Native Americans. The BIA review team has a genealogist that specializes exclusively in genealogy. Denial of federal recognition of a tribe may not mean that the applicants are not Indians but where the denial is based on the applicant's failure to meet criterion number one, decendents from Indians, the applicants, as in the case of the Machis, are not Indians. Dan Harbolt is an investigator with the Department's Inspector General's Office. Harbolt and a colleague, Nick Collins, went to Alabama and interviewed the budget director and administrator of the Alabama Indian Affairs Commission, Jane L. Weeks, to ascertain information concerning Alabama's recognition process of Indians. The Alabama Indian Affairs Commission was not involved in reviewing certification of establishing criteria for Indian recognition and has no established criteria for such recognition. Harbolt's meeting with Weeks occurred in response to rumors that certification as a member of an Indian tribe could be purchased in Alabama. Upon learning that, Harbolt and Collins traveled to Alabama on July 21-22, 1988. Prior to that trip, Collins had contacted a Billy Joe Faulkner, who represented himself as chief of the United Cherokee Tribe of Alabama. Collins requested Indian tribal membership explaining that he was a Tallahassee contractor that wanted to become certified as a DBE. Faulkner indicated that Collins should bring him $500 and that he had never certified anyone for less than that amount. Faulkner did not inquire as to Collins' blood line or heredity during that conversation. At Faulkner's residence in Alabama, Collins completed a phony family tree chart and Faulkner accepted Collins' self-affirmation that he (Collins) had Indian blood on his mother's side. Faulkner gave Collins eleven signed tribal membership certificates to fill out, and raised-seal membership documents from the tribe. All the documents were left blank as to the name of the member and were given to Collins to complete the member's name at a later time. Faulkner signed the documents as principal chief. The investigation results were reported to Stewart, upon Harbolt and Collins return to Tallahassee the following week. Juanita Moore, Bureau Chief of the Office of Minority Programs, drafted the proposed rule. In preparing the draft of the proposed rule, Moore consulted with Leigh Ann Reynolds, an employee in the Department's contract compliance office. In preparing the draft, Moore examined the list of potentially affected DBEs and considered the cost to those potentially affected entities. Moore determined that there would be an economic impact on approximately nine million dollars of the department's work involving some approximately 15 affected DBEs. Moore determined, based on a cost analysis and other financial data, that there are, in total, approximately 100 Indian DBEs who are doing business with the Department. Of that amount, there would be approximately 15 who would be directly affected by promulgation of the proposed rule. However, there would be a "washout" of DBEs, that is, another DBE, unaffected by the proposed rule, would step in to be awarded that work to the extent that those affected DBEs were unable to otherwise demonstrate that they are entitled to the DBE certification. The Department is concerned about the genuineness of the applicants who represented themselves to be of Indian descent. Put another way, the Department has found it difficult, if not impossible, to trace the heritage of applicants who claim DBE certification based on their Indian heritage under the Department's existing certification criteria. Petitioner Coxwell presented a family pedigree chart which could note be verified as accurate. Moore has had extensive experience with the Department as an internal auditor, Program Management Review and Evaluation, Deputy Bureau Chief for Contract Administration and her present position of Bureau Chief. She has analyzed bids with respect to the Department's contracting requirements and familiar with contract contents and the administration of the process of qualifying prime and subcontractors. Moore is a member of the DBE Certification Committee. Moore considered the economic impact that would be brought to Petitioner Coxwell and others similarly situated to the extent that they lost their DBE certification pursuant to the proposed rule. She reviewed Petitioner Coxwell's application for qualification as a prime contractor which contains an itemization of all contract names and customers for fiscal year ending September 30, 1987. Of the 57 contracts listed, 9 are listed as Department contracts or subcontracts. Based upon Moore's examination of the impact on free and open competition, and on potentially affected DBE's, Moore concluded that only 15 potentially affected Indian DBE's would no longer be eligible for certification. The remaining DBE's would be benefited by the change. The removal of any current DBE specialty contractor would have no substantial impact on the Department's ability to set DBE contract goals or on open competition to meet DBE goals as there are a minimum of 25 eligible specialty contractors who are DBEs and could perform that type of work In preparation of the draft of the economic impact statement (EIS), Moore reviewed the handwritten draft and concurred in the revision of the EIS to reflect the determination that the proposed rule would have an impact on certain currently certified Indian DBEs. Moore's liaison with the Department's legal section in preparing the rule and the EIS, Leigh Ann Reynolds, jointly reviewed the proposed rule and EIS. The summary of the EIS did not reflect correctly Moore's determination that the proposed rule would ,affect certification of some current DBEs. An error in printing the summary was discovered subsequent to its being published. This in no way negated the determination that the rule impacted some Indian DBEs, which was accurately stated in the actual EIS, the latter having being submitted simultaneously to the Joint Administrative Procedures Committee (JAPC) by Jim Myers, a consultant in the Department's legal section. Three weeks prior to the public hearing held on the proposed rule, Myers sent the proposed rule with its underscored proposed changes, seeking comments, to all currently certified Indian DBEs. The Department considered the comments received at the public hearing held on the proposed rule. Additionally, the Department intends to consider eligible, under Indian status, those persons who can demonstrate eligibility for membership in federally recognized tribes, in addition to actual members.
The Issue The issues in this cause are presented through a bid protest filed by Hobbs Construction questioning the notice of the Florida Department of Transportation which rejected all bids on State Project No. 49010-3543, Franklin County, Florida, in which Hobbs was the apparent low bidder. In particular, Hobbs challenges the rejection of its bid, wherein the Department has claimed that Hobbs has failed to meet the Disadvantaged Business Enterprise contract requirements.
Findings Of Fact On June 14, 1984, Hobbs Construction and Development, Inc., submitted an application for recognition by the State of Florida, Department of Transportation, to perform work for the department in an additional work class for which Hobbs had not previously qualified. On June 22, 1984, this request for qualification was approved as evidenced by the correspondence of that date from J. Ted Barefield, Chief of Bureau of Contracts Administration, Department of Transportation, addressed to Hobbs. A copy of that correspondence may be found as Petitioner's exhibit number two admitted into evidence. The Notice of Qualification was received by Hobbs on June 26, 1984. Having been recognized in the new classification, Hobbs was entitled to qualify as a bidder on Budget Item 3112655, which is also known as State Project No. 49010-3543, Franklin County, Florida. (Prior to the new classification or qualification of Hobbs, Hobbs was entitled to purchase the plans for the aforementioned job, but was not entitled to receive the actual bidding documents [specifications] related to the job.) On June 26, 1984, the date that Hobbs was informed of its qualification to pursue the subject job in Franklin County, it obtained the bid packet, job specifications, from the Department of Transportation. Even before qualification, Hobbs being interested in the Franklin County job made attempts on June 21, 1984, to contact Disadvantaged Business Enterprise subcontractors, known as DBE subcontractors, realizing that the contract called for participation by a DBE subcontractor(s). Glen Powell Contracting, Inc., Lynnhaven, Florida, and Bryan L. Therman Contractors, Inc., of Chipley, Florida, were among the DBE subcontractors which Petitioner was interested in and attempted to contact. It was contemplated that those contractors would perform the installation of rip rap which constituted a high percentage of the project work. Oglesby and Hugg, a DBE subcontractor, was also contacted about installation of rip rap and indicated that they were not interested in the project. The contact with Therman was by talking to someone in hips office, leaving a message for Therman to call the Hobbs representative. The Therman group did not make a return call. Glen Powell and another official within the Glen Powell corporation, reviewed the project with officials of Hobbs' Construction Company and indicated that Powell would not be able to give a quote for the subcontracting rip rap work given the nearness of the time to submit the bid. Powell had been reached on June 25, 1984, and made the assessment of the bid materials on June 26, 1984, at which point he declined to give a price quote for the subcontracting rip rap work. Several DBE grassing subcontractors were also contacted by Hobbs and declined to perform work given the location of the project and the small amount of grassing to be installed. When the bid was submitted by Hobbs, the only DBE subcontractor that was listed was Black Olive Nursery and Landscaping of 21053 N.W. 37th Court, Miami, Florida. That class of work was landscaping in the amount of 9,599.30, which is approximately .6 percent of the Hobbs bid proposal in the amount of $1,585,170.30. Hobbs submitted the bid on the Franklin County project in time to meet the June 27, 1984, bid opening. When the bids were opened, Hobbs bid reported above was the apparent low bid for the project. As was the custom of the Department of Transportation, its Contracts Awards Committee met to determine the acceptability of the bids for the Franklin County project and to decide whether to go forward with the project in the face of the bids offered. At that time, the committee being of the belief that Hobbs and the second low bidder both failed to meet DBE participation requirements of the contract and being persuaded of the need to modify the plans and revise the specifications related to the installation of rip rap it was decided to reject all bids. That decision was by unanimous vote of the Contracts Award Committee of the Department of Transportation and this advice was accepted by the agency head. A copy of the minutes of that committee, which reflects the decision of the committee, may be found as Department's exhibit number two. On July 24, 1984, Hobbs was noticed of the Department's intent to reject all bids for reason that the Department desired to revise the plans and specifications and in view of the fact that, according to the Department, Hobbs had failed to meet the DBE contract requirements. A copy of this Notice of Bid Rejection may be found as Petitioner's exhibit number one admitted into evidence. That notice affords an opportunity for Hobbs to challenge the bid rejection through request for a Chapter 120, Florida Statutes hearing. Hobbs timely availed itself of that opportunity leading to the formal hearing which is the subject of this recommended order. To meet the DOE requirements of the contract, it was necessary for Hobbs to designate 2 percent of the contract amount for DOE subcontractor participation. In the alternative, if Hobbs was unable to achieve that goal, it was necessary for Hobbs to provide sufficient information to show that it had made a good faith effort to meet the goal. The issues joined in this case concern whether Hobbs timely provided its explanation of its good faith efforts to obtain DBE participation in the project and if that explanation was provided in a timely fashion, whether it was sufficient information to demonstrate good faith compliance. Within the specifications, a copy of which is found as joint exhibit number one, there are found Supplemental Special Provisions dating from May 31, 1984. Subarticles 2-5.3.2 and 2-5.3.3, deal with the question of DBE participation and the need to submit good faith efforts. The language of those provisions is as follows: 2-5.3.2 Submittals for Contracts with Goals: For all contracts for which DBE and/or WBE contract goals have been established, each contractor shall meet or exceed or demonstrate that it could not meet, despite its good faith efforts, the contract goals set by the Department. The DBE and WBE participation information shall be submitted with the Contractors bid proposal. Award of the Contract shall be conditioned upon submission of the DBE and WBE participation information with the bid proposal and upon satisfaction of the contract goals or, if the goals are not met, upon demonstrating that good faith efforts were made to meet the goals. The Contractors bid submission shall include the following information (Submitted on Form No. 141-12 - DBE/WBE Utilization Form No. 1): 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 toward DBE and WBE goals. A description of the work each named DBE and WBE firm will perform. The dollar amount of participation by each named DBE and WBE firm. 2-5.3.3 Submittals for Evaluating Good Faith- Efforts: If the DBE or WBE goal is not met, sufficient information to demonstrate that the Contractor made good faith efforts to meet the goals shall be submitted. In evaluating a contractor's good faith efforts, the Department will consider: Whether the Contractor, at least seven days prior to the letting, provided written notice by certified mail, return receipt requested, or hand delivery, with receipt, to all certified DBEs and WBEs which perform the type of work which the Contractor intends to subcontract, advising the DBEs and WBEs (a) of the specific work the Contractor intends to subcontract; (b) that their interest in the contract is being solicited; and (c) how to obtain information about and review and inspect the contract plans and specifications. Whether the Contractor selected economically feasible portions of the work to be performed by DBEs or WBEs, including where appropriate, breaking down contracts or combining elements of work into economically feasible units. The ability of a contractor to perform the work with its own work force will not in itself excuse a contractor's failure to meet contract goals. Whether the Contractor provided interested DBEs or WBEs assistance in reviewing the contract plans and specifica- tions. Whether the DBE or WBE goal was met by other bidders. Whether the Contractor submits all quotations received from DBEs or WBEs, and for those quotations not accepted, an explanation of why the DBE or WBE will not be used during the course of the contract. Receipt of a lower quotation from a non-DBE or non-WBE will not in itself excuse a contractor's failure to meet contract goals; provided, however, a contractor's good faith efforts obligation does not require a contractor to accept a quotation from a DBE or WBE which exceeds the lowest quotation received from any subcontractor by more than one percent. Whether the contractor assisted interested DBEs and WBEs in obtaining any required bonding, lines of credit, or insurance. Whether the contractor elected to subcontract types of work that match the capabilities of solicited DBEs or WBEs. Whether the Contractor's efforts were merely pro forma and given all relevant circumstances, could not reasonably be expected to produce sufficient DBE and WBE participation to meet the goals. Whether the Contractor has on other contracts within the past six months utilized DBEs and WBEs. The above list is not intended to be exclusive or exhaustive and the Department will look not only at the different kinds of efforts that the Contractor has made but also the quality, quantity, and intensity of these efforts. These provisions are under the general heading of Preparation of Proposals related to Articles 2 through 5. Subarticle 2-5.3.2 indicates that the bidder shall establish its participation information related to DBE subcontractor with the bid proposal or if the goals are not met, demonstrate that good faith efforts were made to meet the goals. The contract is awarded upon condition that the DBE participation goals are met, or upon establishing that good faith efforts were made to meet the goals and that the goals were not attainable. The form known as the DBE Utilization Form No. 1 was provided in this instance. It contemplates information as to success in meeting the DBE goals. A copy of that form may be found as part of the joint exhibit one. It contains no specific place to explain the good faith efforts that were made by the Petitioner to achieve those goals, in view of the Petitioner's lack of success in meeting the goals and Hobbs didn't submit good bid information with its bid. The bid was also submitted under the ausnices of Rule 14-78.03, Florida Administrative Code (May 1984). The first effort which Hobbs made at describing his alleged good faith efforts to employ the assistance of DBEs came on August 29, 1984, in correspondence of its project manager. This correspondence is found as State of Florida, Department of Transportation's exhibit number three and is correspondence directed to another official within Hobbs Construction. This statement of efforts to obtain minority or DBE participation in the project was along the lines of testimony given in the course of the hearing. No information, related to compliance, was given to the Department of Transportation prior to its notice of intent to reject the bid of July 24, 1984. Having no obligation to request that information from Hobbs, the Department of Transportation did not attempt to stir Hobbs into action on the issue of indication of good faith, prior to its notice of intent to reject Hobbs bid. Hobbs' explanation was eventually advanced ate the final hearing. Factually, even if one were to assume that the Petitioner could submit its prebid letting efforts at good faith compliance with the DBE goals, at a time beyond the filing of its bid proposal, the efforts do not comport with the concept of good faith as described in Subarticle 2-5.3.3 of the bid proposal and Section 14-78.03, (2)(b) 4.b., Florida Administrative Code related to an assessment of the efforts at good faith compliance. In this sense, Hobbs failed to afford sufficient time for DBE subcontractors to provide responses to the opportunity to offer quotations for the subcontracted work. The Subarticle and Rule contemplate seven days notice prior to the bid letting. The contracts made by the Petitioner were less than seven days prior to the letting of June 27, 1984. This left the one subcontractor who expressed some interest in the project, Powell, inadequate time to offer its price quote. Petitioner tries to explain its position on the question of the timeliness of its attempt by stating that it only became qualified five days before the bid letting and was only informed of that qualification one day before th opening. Given the fact that the Petitioner made application for such qualification on June 14, 1984, only thirteen days before the bid letting, its tardiness did not leave adequate time to afford potential DBE subcontractors the opportunity to respond to the work opportunity envisioned in this project. Finally, given the close proximity in time between the efforts of the Petitioner to seek DBE participation and the bid letting date and the problem related to the Petitioner's late expression of an interest in qualification for this class of job, Petitioner cannot be said to have offered much in the way of quality and intensity in the efforts to enlist DBE subcontractors for this project, as envisioned by the Subarticle and Rule provisions describing good faith efforts at compliance.
Findings Of Fact The parties stipulated to findings of fact set forth in paragraphs 1.-10., below. Stipulated Facts A call for bids was published by Respondent, Florida Board of Regents, for BR-198, Veterinary Medicine Teaching Hospital Expansion - Phase II (BR-198), located at the University of Florida, Gainesville, Florida, in the publication known as the Florida Administrative Weekly. Sealed bids were received on February 21, 1991, at which time the bids were publicly opened and read aloud. On February 27, 1991, Dooley and Mack Constructors, Inc. (Petitioner) was informed by the University of Florida that the first and second apparent low bidders for the project did not meet MBE requirements, and that Petitioner was now the apparent low bidder for the project. The University requested that Petitioner submit its MBE good faith efforts for review. On March 1, 1991, Petitioner was informed by the University of Florida that it failed to meet the MBE good faith effort requirements, and therefore, its bid was rejected. The reason for rejection of Petitioner's bid was that Petitioner's advertisement for MBE participation, as part of its demonstration of good faith effort, did not appear in the media at least seven days prior to bid opening. Intervenor, the next apparent low bidder, submitted good faith efforts for review by the University and was determined to be the lowest responsive bidder. Intervenor was awarded the project by the Chancellor of the Florida Board of Regents on March 18, 1991. By letter dated March 19, 1991, Petitioner was advised that the Chancellor had awarded the contract to Intervenor. Petitioner was provided an opportunity to file a notice of protest pursuant to Section 120.53(5), Florida Statutes. Petitioner filed a timely notice of protest with Respondent on March 22, 1991. Petitioner timely filed a formal bid protest in regard to this project which was received by Respondent on March 27, 1991. By facsimile (FAX) letter dated February 13, 1991, Petitioner requested that the Gainesville Sun, a newspaper in Gainesville, Florida, run an advertisement for one day to solicit bids from qualified MBE companies for BR- 198. The advertisement was published in the February 18, 1991 edition of the newspaper. The Project Manual, Section 1-3 of 1-10 Pages, Special Conditions section, paragraph 1.7.2.2., provides that advertisements for minority business enterprises must run or be published on a date at least seven days prior to bid opening. Other Facts The Project Manual is an assembled volume which contains instructions to bidders, bidding requirements, sample forms, and contract conditions and specifications for BR-198. A special condition of the bid requires that at least 15 percent of the project contract amount be expended with MBEs certified by the Department of General Services. 1/ In the absence of compliance with this requirement, a bidder must demonstrate that good faith efforts were expended to comply. A contractor desiring to demonstrate that a good faith effort was undertaken to meet the 15 percent goal is required by the bid's special conditions to have advertised to inform MBEs of subcontracting opportunities. The importance of advertising is to alert the minority community regarding projects that are out for bid and are available to subcontractors. The advertisements must have been run in trade association, or minority-focus media, or a local newspaper with a minimum circulation of 25,000. Advertisements must be run or published a minimum of seven days prior to bid opening. Petitioner's advertisement in a local newspaper, the Gainesville Sun, was not published until February 18, 1991, only three days prior to the February 21, 1991 bid-opening. Further, the advertisement was not faxed to the newspaper until February 13, 1991, and then with the written request to "please place as soon as possible and run for one day." A letter from the newspaper to Petitioner stated that the legal notice advertisement was published on February 18, 1991, as opposed to February 16, 1991, due to a date error on their FAX machine. The latter date, even if publication had occurred, would not have complied with bid requirements. Petitioner also submitted a project notice published in the construction industry bulletins F.W. Dodge Reports, dated February 1, 1991; CMD Reports, dated February 18, 1991; and the Mid State Notifier, dated February 1, 1991. The notices listed Petitioner as well as other bidding contractors. However, it is specifically found that no direct admissible evidence supports Petitioner's responsibility for initiating publication of these notices, a requirement of the good faith effort. Specifically, the notices were published as the result of information received by the publications from the University of Florida. Therefore, good faith efforts on Petitioner's behalf may not be established by either publication, regardless of publication date. Moreover, the F.W. Dodge Reports, CMD Reports, and the Mid State Notifier are private subscription publications directed toward the construction industry in general as opposed to any particular trade in the construction industry. Further, these publications are not directed to or focused on minority businesses. A trade association publication is generally published by not-for-profit associations, such as the Association of General Contractors, and various trade unions. Petitioner did not comply with advertising requirements related to a good faith effort, a prerequisite for bid award. Petitioner's failure to comply with constitutes a material defect in Petitioner's bid response.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered granting the award of the bid in BR-198 to Intervenor as the lowest responsible bidder. DONE AND ENTERED this 27th day of June, 1991, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 27th day of June, 1991. APPENDIX TO RECOMMENDED ORDER CASE NO. 91-2703BID The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings. 1.-10. Adopted in substance, although not verbatim 11.-14. Rejected, unnecessary. Adopted in substance, though not verbatim. Rejected, unnecessary. Rejected, unnecessary, argumentative Adopted. Intervenor's Proposed Findings. 1.-16. Adopted in substance, though not verbatim. 17-18. Rejected, unnecessary. Respondent's Proposed Findings. 1.-10. Adopted in substance. 11.-22. Adopted in substance, though not verbatim. 23.-24. Rejected, unnecessary. 25.-40. Adopted in substance, though not verbatim. COPIES FURNISHED: William R. Dooley, Esq. 2070 Ringling Blvd. Sarasota, FL 34237 Jane Mostoller, Esq. Florida Board of Regents Suite 1522 325 West Gaines St. Tallahassee, FL 32399-1950 Alfred J. Malefatto, Esq. 777 South Flagler Drive Suite 310-East West Palm Beach, FL 33401 Chancellor Charles B. Reed State University System of Florida 107 West Gaines St. Tallahassee, FL 32399-1950
