The Issue Whether Petitioner has standing to administratively challenge, on the ground that navigation will be adversely affected, the Department of Environmental Regulation's determination, announced in its May 2, 1989, Notice of Permit Issuance, to issue Permit No. 061594966 authorizing Respondent Avatar Corporation to conduct dredge and fill activities in the Northwest Channel in Broward County, Florida, in connection with the construction of a fixed span bridge traversing that waterway? Whether its challenge was timely instituted? Whether the permit should be issued and under what additional conditions, if any?
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: Petitioner is a homeowners association. Its 300 dues-paying members 1/ own homes in an area of the City of Hollywood bounded on the north by Sheridan Street, on the south by the City of Hallandale, on the east by the Intracoastal Waterway and on the west by U.S. Highway One. Avatar is a developer. It owns land in the City of Hollywood that it has platted and now desires to develop into a residential community known as Harbor Islands consisting of, among other things, 3,175 dwelling units, a hotel, and retail stores. In addition, four parcels of land (Parcels 2, 3, 11 and 11A) within the planned community, totaling approximately 30 acres, have been dedicated to the City of Hollywood for use as public park land. Avatar's right to develop this land for residential use was affirmed in the final judgment entered in Broward County Circuit Court Case No. 72-4252 on September 20, 1974, as supplemented by the supplementary final judgment entered in that case on December 17, 1981. Neither Petitioner, the Department, nor any other state agency was a party in Broward County Circuit Court Case No. 72-4252. The land that Avatar seeks to develop is situated on three islands and is bounded on the north by the Washington Street Canal, on the south by the City of Hallandale, on the east by the Intracoastal Waterway and on the west by the DeSoto Waterway. Two waterways, the Venetian Waterway and the Northwest Channel, run through the interior of the planned Harbor Islands development (Development). The Venetian Waterway lies between the two southernmost of the Development's three islands. From its northern terminus at the Northwest Channel, it follows a southerly course beyond the southern boundary of the Development and into the City of Hallandale. On its southward trek, it passes under two bridges, one within the Development and one in the City of Hallandale. These bridges are of the fixed span variety and both have a vertical clearance of approximately ten to 12 feet. The Northwest Channel separates the northernmost of the Development's three islands from its other two islands while connecting the DeSoto Waterway with the Intracoastal Waterway. It is a man-made canal, the construction of which was the subject of a 1969 agreement between Avatar's predecessors in interest, who will hereinafter be referred to as the "Mailmans," and the City of Hollywood and Broward County, among others, 2/ that settled a lawsuit the Mailmans had filed. Numbered paragraphs 5, 6, 12 and 15 of the agreement provided as follows: NORTH AND SOUTH CHANNELS. The MAILMANS agree to construct and perpetually maintain at their expense, a channel or canal, running from the southerly portion of the DeSoto Waterway, as shown on Exhibit B, attached hereto, the same to be located in the vicinity of the present existing channel or within 500 feet south thereof, and in a like manner to construct and maintain a similar channel or canal, running from the northerly portion of the DeSoto Waterway, easterly to and connecting with the Intracoastal Waterway as shown on Exhibit B, attached hereto. Said channels shall have a minimum depth of 10 feet and shall be sufficient for all vessels requiring a clearance of 16 feet, and a minimum width of 100 feet. The parties acknowledge that the purpose of said channels or canals is to provide the general public the unobstructed and perpetual means of navigable access to the Intracoastal Waterway from any part of the DeSoto Waterway both north and south of Northeast Ninth Street. BRIDGES. The parties agree that the MAILMANS shall have the right to construct bridges, at their expense, across the aforesaid channels described in paragraph 5, hereinabove, together with necessary approaches and abutments. Said bridges shall be either "turntable" or stationary bridges, of a minimum height of 16 feet, as measured at high tide, with a clear span of not less than 30 feet. The parties further agree that the MAILMANS shall have the right to construct at their expense a bridge across DeSoto Waterway at Northeast Ninth Street, together with necessary approaches and abutments, which bridge shall be the only one not required to have clearance of 16 feet. Said bridge, together with necessary approaches and abutments, if constructed, shall be of such size and construction as shall not block, obstruct or interfere with the use of any part of Diplomat Parkway or Northeast Ninth Street lying west of DeSoto Waterway as each public thoroughfare presently exists. The parties further agree that under no circumstances shall any bridge be constructed so as to hinder or obstruct perpetual and navigable access of vessels requiring a minimum clearance of 16 feet at mean high tide, to the Intracoastal Waterway from any part of DeSoto Waterway lying North and South of Northeast Ninth Street. The MAILMANS agree that in the event of the aforesaid construction, they shall permanently maintain said bridges in safe working order. Said parties further agree to provide, at their expense necessary personnel to operate all turntable bridges at all times. 3/ 12. COVENANTS RUNNING WITH THE LAND; RECORDING. The parties agree that all of the covenants contained in Paragraphs 4, 5, 6, 7, and 8, herein are to be construed as running with the land; that a copy of this Agreement is to be recorded among the public records of Broward County, Florida; and that appropriate reference or specific designation of this agreement is to be made in any instruments of conveyance or development by deed or plat or otherwise, which shall be executed by the MAILMANS, their successors or assigns, as to any property described on pages 1 or 6 hereinabove. 15. BINDING EFFECT. All rights and obligations under this Agreement shall be binding upon and inure to the benefit of and be enforceable by successors, assigns, nominees, heirs and personal representatives of the parties. As the plat for the Development reflects, the Northwest Channel is privately owned by Avatar and has not been dedicated to any governmental entity. 4/ The depth of the water in the Northwest Channel ranges from approximately ten to 12 feet at its shallowest point to approximately 25 feet at its deepest. At present, there are no bridges crossing the Northwest Channel. The Northwest Channel is the only means of access to the Intracoastal Waterway for boats using the DeSoto Waterway north of the Atlantic Shores Boulevard (Northeast 9th Street) bridge in Hallandale (which portion of the waterway will hereinafter be referred to as the "Northern DeSoto Waterway") and the Washington Street Canal west of the culvert crossing at Three Islands Boulevard (which portion of the waterway will hereinafter be referred to as the "Western Washington Street Canal") that are too tall to safely navigate under the Atlantic Shores Boulevard bridge, which is a fixed span bridge and has a vertical clearance of approximately six to eight feet. 5/ The Northern DeSoto Waterway and the Western Washington Street Canal are used by pleasure boaters and water skiers. Neither watercourse has a high volume of traffic. Approximately 35 of Petitioner's members own waterfront homes adjacent to the Development on the other side of either the Washington Street Canal (which homeowners have a Washington Street address) or the DeSoto Waterway (which homeowners have a Diplomat Parkway address). Most, if not all, have docks behind their homes. 6/ They do not have to rely on marine transportation to reach their homes, however, inasmuch as they have easy access to their property by land. One such homeowner is Kenneth Hark, who lives at 1415 Diplomat Parkway. Hark owns a boat, the "Marcy," that he docks behind his home on the DeSoto Waterway south of where it meets the Northwest Channel. The "Marcy" is approximately 34 feet long. With its outriggers extended, it is approximately 30 feet high. It is approximately 18 feet high with its outriggers lowered. Hark uses his boat approximately once a week. Because of the height of his boat, he must traverse the Northwest Channel to get to the Intracoastal Waterway. Rowland Schaefer is another member of Petitioner who lives along the DeSoto Waterway and docks his boat behind his home. His boat is approximately 60 feet long, 17 to 18 feet wide and 25 to 28 feet high. There are other boats that are regularly docked on the Northern DeSoto Waterway and the Western Washington Street Canal. One of these boats is the "My Lady," which is approximately the same height as Hark's boat. Homeowners living along the Northern DeSoto Waterway and the Western Washington Street Canal also occasionally have visitors who arrive by boat. For instance, Hark's next door neighbors have an adult son who, on occasion, comes to their home in a sailboat that is approximately 40 feet in height. Another boat that brings visitors to the neighborhood is a vessel that is approximately 80 to 90 feet long and 25 to 30 feet high. About three to five times a year this boat docks behind the Cowan residence. In mid-December of 1988, Avatar submitted a "short form" application to the Department for a dredge and fill permit to construct a fixed span bridge over the Northwest Channel at Three Islands Boulevard, where the average depth of the water is approximately 15 feet. The proposed bridge would connect the northernmost of the Development's three islands with the southern island that lies to the west of the Venetian Waterway. The project and its anticipated impacts were described in Avatar's response to Item 10 on the application form as follows: The applicant proposes to construct a fixed bridge approximately 220 feet long and 71.25 feet in width to provide access for development of the northernmost island of the Harbor Islands Development community. The proposed bridge will have a vertical navigational clearance of 17.04 feet above mean high water, 19.34 above mean low water, and a horizontal clearance of 51.83 feet between pile caps. There will be no dredging and filling associated with the proposed work, and no significant encroachment of the floodplain will occur. Benthic vegetation along the slopes of the Northwest Channel consist primarily of green algae, including sporadic stolons of Caulerpa sertularioides. In deeper portions of the channel, where light is limited, the benthic substrate is barren. Water quality impacts will be temporary in nature, with turbidity controls such as but not limited to turbidity curtains implemented to ensure that turbidity values do not exceed 29 N.T.U.'s above background. Item 5 on the application form requested the "NAME AND ADDRESS INCLUDING ZIP CODE OF ADJOINING PROPERTY OWNERS WHOSE PROPERTY ALSO ADJOINS THE WATERWAY." Avatar's response was "None." Aside from Avatar there were no other private property owners who owned land adjoining the Northwest Channel. Accordingly, Avatar's response to Item 5, to the extent that it conveyed such information, was accurate. Avatar's application was processed and reviewed by staff in the Department's Southeast District office, who in February of 1989, sent Avatar a letter advising it that the application was incomplete and that additional information and clarification was needed. The letter provided as follows with respect to Avatar's response to Item 5: Item No. 5 was not completed. Please provide the name and address including zip code of the nearest adjoining property owners with waterfront residence. On or about March 8, 1989, Avatar submitted a written response to the Department's February, 1989, letter. The response stated the following regarding "adjoining property owners:" The proposed project is located in the center of a large piece of property owned exclusively by [Avatar]. There are no adjoining property owners. The nearest potential adjoining property owners are located over 2000 feet from the proposed project site. In fact, Avatar did not own all of the property within the Development. It had dedicated certain land to the City of Hollywood and therefore no longer owned the entire property. Among these parcels of land that Avatar had dedicated was Parcel 11. Parcel 11 is located on the northernmost island of the Development a short distance (approximately 250 feet) to the north of the site of the proposed bridge. Furthermore, there were private homeowners with waterfront residences on the DeSoto Waterway and Washington Street Canal, including members of Petitioner, who also owned property less than 2,000 feet from the proposed project site. The Department did not forward a copy of Avatar's application to these or any other homeowners. Neither did it require Avatar to publish notice of the filing of the application. It, however, did send a copy of Avatar's application to the Mayor of the City of Hollywood and the Chairperson of the Broward County Board of County Commissioners, accompanied by a letter advising them of a local government's right to timely file objections to an application for a dredge and fill permit and to request an administrative hearing after receiving the Department's notice of intent to issue the requested permit. Neither the City of Hollywood nor Broward County filed any objections to Avatar's application. Moreover, no member of the general public commented on the application. On May 2, 1989, the Department issued a notice of its intent to grant Avatar's application for a dredge and fill permit (Permit No. 061594966). The notice explained that a person whose substantial interests were affected by the granting of the permit had a right to file a petition for an administrative hearing within 14 days of his or her receipt of the notice and that the Department's issuance of the permit would be considered "final" if no such timely petition was filed. A copy of the notice was mailed to Avatar, as well as the United States Army Corps of Engineers, the Department of Natural Resources, the Broward County Environmental Quality Control Board and the Broward County Property Appraiser. Neither Petitioner nor its members were sent a copy of the notice. There was no publication of the Department's notice. On August 30, 1991, Avatar requested that Permit No. 061594966 be modified to reflect a reduction in the length of the permitted bridge from 220 feet to 130 feet. The plans submitted by Avatar in support of its request indicated that the modified structure would have a vertical clearance of 17.1 feet at mean high water and 19.4 feet at mean low water and a horizontal clearance of 52 feet. In October of 1991, the Department approved the requested permit modification. Avatar was notified of the Department's decision by letter, a copy of which was sent to the United States Army Corps of Engineers, the Department of Natural Resources and the Broward County Office of Natural Resource Protection. The letter described the modification as "minor." Pilings that will support the bridge have already been driven and are in place. If construction of the bridge is completed in accordance with the plans approved by the Department, some boaters who now use the Northwest Channel as their sole means of travelling back and forth between the Northern DeSoto Waterway and Western Washington Street Canal to the west and the Intracoastal Waterway to the east will no longer be able to do so because their boats will be unable to safely navigate under the bridge. While the bridge will not be able to accommodate all of the boats that currently use the Northwest Channel, its vertical clearance is greater than that of the typical bridge crossing a canal in a residential area. To redesign the bridge to raise its vertical clearance several feet would require lowering the design speed to approximately ten to 15 miles per hour, which would pose a potential safety hazard. Navigational problems associated with vertical clearance would be eliminated if Avatar constructed a turntable bridge or a drawbridge instead of a fixed span bridge. Turntable bridges and draw bridges, however, are considerably more costly to build and maintain than fixed span bridges of comparable size. Furthermore, because of concerns regarding incompatibility, they are generally not constructed in residential neighborhoods. Petitioner first became aware of the issuance of Permit No. 061594966 in the spring of 1992, when two of its members visited the Department's Southeast District office and reviewed the contents of the Department's file on the permit, including Avatar's application for the permit and the Department's notice of its intent to grant the application. 7/ After its Board of Directors voted to challenge the issuance of the permit and the membership assented to launch such a challenge, Petitioner filed its request for a formal hearing on the matter. 8/
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Environmental Regulation enter a final order granting Avatar's application for a dredge and fill permit to construct a fixed span bridge over the Northwest Channel as the Department proposed to do in its May 2, 1989, notice of intent to issue Permit No. 061594966. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 31st day of December, 1992. STUART M. LERNER 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 December, 1992.
Findings Of Fact 1. On or about January 18, 1988, a DOT sign inspector observed Respondent's signs 600 and 625 feet south of Candlewood Drive in Pasco County on what appeared to be the easterly right-of-way of U.S. 19. The right-of-way of U.S. 19 at this location extends 59 feet from the easterly edge of the pavement of U.S. 19. Respondent's signs were 49 feet from the edge of the paved surface of U.S. 19. U.S. 19 is a Federal Aid Primary Highway. Respondent located his signs east of the berm along U.S. 19 which he believed to be off of the DOT right-of-way.
Findings Of Fact Introduction On an undisclosed date, respondent, Department of Transportation (DOT), gave notice to qualified and interested contracting firms that it was accepting bids from firms interested in providing various services on State Job No. 90030- 3539. Such bids were due on or before June 24, 1987. In general terms, the project required the successful bidder to perform various maintenance services on the Old Seven Mile Bridge between Pigeon Key and Knight Key just southwest of Marathon in Monroe County, Florida. The parties have stipulated that the project involves the following classes of work: Bridge painting 82 percent Restoration of spalled areas 6 percent Miscellaneous concrete and steel 9 percent Maintenance of traffic 3 percent In response to this offer, three contractors submitted timely bids. These included petitioner, Midwest Industrial Painting of Florida, Inc. (Midwest), intervenor-respondent, Cone Constructors, Inc. (CCI), and J. D. Abrams, Inc. Their respective bids were $1,746,390, $1,122,000 and $2,149,345. The parties have stipulated that the bids of both CCI and Midwest are below the DOT budget estimate and preliminary estimate for the project. On August 3, 1987 DOT posted its intent to award the project to CCI, which submitted the lowest dollar bid. Thereafter, petitioner timely filed a protest challenging the award of the contract to CCI. In its formal protest, Midwest contended that CCI was ineligible to submit a bid since it was not prequalified by DOT to perform bridge painting, a service required for this job. The filing of the protest prompted the instant proceeding. The Project The Old Seven Mile Bridge, once a vital link in the Florida Keys highway network, was replaced in the early 1980s with a new Seven Mile Bridge. Since its replacement, the old bridge has had very little, if any, traffic and is no longer in service as a state highway. Indeed, its center span has been removed, and it is used primarily as two fishing piers by avid anglers and for access to Pigeon Key where a University of Miami research facility is located. The legislature recently mandated that the old bridge be turned over to the Department of Natural Resources (DNR). So that DNR receives the bridge in good condition, DOT intends to perform all necessary maintenance and rehabilitation prior to its turnover. The project has been identified as State Job 90030-3539. The job includes painting the exposed structural steel, doing "corrective measures" to portions of the structural members, and other miscellaneous work. The project will be funded wholly with state funds, and is not considered a critical job. Although at hearing DOT personnel considered the structural work to be the most important aspect of the project, and the painting to be incidental, DOT did not prepare the bid specifications in this manner. Rather, it elected to prepare the specifications listing bridge painting as normal work. By categorizing the work in this manner, DOT did not contravene any statute, rule or standard. Had DOT categorized painting as "specialty" or incidental work on the project, painting would have been considered an incidental aspect of the job, and bidders would not have to be prequalified in bridge painting. However, DOT did not assert its specifications were in "error," or that this might serve as a ground to reject all bids. Indeed, there is no evidence that any bidder was confused or had any doubt as to the services required under the contract. Prequalification Requirements DOT requires that, on projects exceeding a cost of $250,000, bidders obtain a certificate of qualification setting forth the areas (classes) in which they are qualified to perform work. This is commonly known as prequalification. One of these classes of competency is bridge painting, which constituted approximately 82 percent of the work to be done on Old Seven Mile Bridge. The parties have stipulated that CCI's certificate of qualification did not include bridge painting as an area in which it had been qualified. Despite several post-June 24 requests by DOT to furnish additional information, CCI had not yet supplied such data at the time of hearing as would enable it to qualify. On the other hand, Midwest was conditionally qualified in this area, but, because of certain DOT reservations, its certificate was due to expire on June 15, 1987. However, Midwest requested a Section 120.57(1) hearing to contest this expiration date, and Midwest has, with DOT's acquiescence, continued to use its certificate for bidding purposes until an adjudication of the claim is made. Without a certificate of qualification, DOT rules provide that a contractor not be given bid documents that would enable it to submit a bid. Further, DOT witnesses confirmed that no bidder has ever been authorized to become prequalified after it had submitted a bid, nor has a nonqualified bidder been awarded a contract. The agency does have a "policy" of allowing contractors who are qualified in the major work class of minor bridge work (but who are not qualified in bridge painting) to receive bid documents on certain major projects. Even so, this policy, however applied in the past, has never been used on a project such as this, and DOT officials confirmed that this was the first time bid documents had been erroneously sent to a nonqualified bidder. DOT's Reaction to the Bids Through "inadvertence" or "error," DOT furnished bid documents to CCI. Thereafter, CCI, Midwest and a third contractor submitted bid proposals. When the bids were opened, DOT discovered that the lowest dollar bidder (CCI) had not been prequalified on bridge painting. The bids were then routed to the DOT technical review committee, a five person committee that reviews projects where the bids do not conform with award criteria. This committee made no recommendation and was "uncommitted." The matter was then reviewed by the DOT awards committee which unanimously recommended that the contract be awarded to CCI even though it had not prequalified on one segment of the work. In proposing that the contract be awarded to CCI, DOT acknowledges that this is not its normal practice. Indeed, it concedes that this is probably the first occasion that it has proposed to award a contract to a nonqualified bidder. However, it considers the project "unique" in the sense that the bridge will be turned over to DNR immediately after the work is completed. In addition, by using CCI, it can save around $624,000 in state funds which can be used to claim almost another $6 million in matching federal funds for other state work. Finally, DOT is fully satisfied that CCI is capable of performing the work on the project, particularly since it considers the structural repairs the most important aspect of the job. If CCI's bid is rejected, DOT's preference is to reject all bids and relet the project. The agency's nonrule policy is that, for projects valued at more than $250,000, a contract will be awarded if the lowest bid is no more than seven percent above DOT's estimate of the project's value. In this case, both CCI and Midwest submitted bids below DOT's budget and preliminary estimates. The Bidders Midwest, which is located in Tarpon Springs, Florida, has been in the bridge painting business for many years, and has worked on DOT projects since 1974. This is the first occasion the firm has filed a protest. The firm is capable of performing the required work. Although its certificate of qualification was supposed to expire on June 15, or before the June 24 bid opening day, Midwest challenged this action and the certificate continues to be used for bidding purposes. The apparent low bidder (CCI) is located in Tampa, Florida and has been engaged in a number of DOT projects since it was formed approximately five years ago. It is now working on three other DOT bridge projects. The firm was prequalified in the bridge painting class in 1983 and 1984, but for some reason, allowed its qualification to lapse. Its present certificate is valid until April 30, 1988 and qualifies CCI to bid on several types of major bridge projects. CCI stands by its bid proposal, and is fully confident the work can be done for $600,000 less than proposed by Midwest. The firm has access to the necessary equipment and manpower to perform the job.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered rejecting the bid of Cone Constructors, Inc. on the ground it was unqualified and non-responsive, and instead awarding the contract on State Job 90030-3539 to Midwest Industrial Painting of Florida, Inc., which submitted the lowest responsive bid. DONE AND ORDERED this 15th day of September, 1987, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 15th day of September, 1987.
Findings Of Fact Blackhawk is the owner of a mine located in Palm Bay, Florida, which, since 1982, has produced cemented coquina shell material for use as a base material in the building of roads. FDOT is the state agency responsible for the construction and maintenance of state roads. FDOT approves sources of supply of road base materials, including cemented coquina shell, for use by contractors in the construction of FDOT road projects. FDOT approval is intended to assure that the producer is capable of providing material in accordance with the standard specifications for that material. Approved source status is required for a producer to sell its material to a contractor for use on FDOT projects, or on non-FDOT projects (some cities and counties) which require that material be from an FDOT-approved source. Approval may be obtained upon the producer's request, after inspection and evaluation performed by FDOT's Bureau of Mining and Materials in accordance with the Standard Operating Procedure for Evaluation, Approval and Control of Mineral Aggregate Sources ("SOP") and Section 915 of FDOT's Standard Specifications for Road and Bridge Construction (("Section 915"). Approval does not guarantee that the producer's material will be used by a contractor. Contractors bidding on FDOT projects are given options of base materials from which to choose. Once the base material is chosen, the contractor selects a producer from the FDOT approved source list. A source's approval will expire if it has not furnished material for Department usage for a period of one calendar year; that period may be extended for one additional year upon the producer's written request. Section 915 defines the composition of cemented coquina shell material, provides for approval of material sources in accordance with the SOP, provides that the material shall be free of specified deleterious substances and sets forth the physical and chemical properties of the material, including the requirement that, "the minimum percentage of carbonates of calcium and magnesium shall be 50." (Petitioner's exhibit #2) Prior to amendment in 1986, Section 915 contained a provision granting the State Materials and Research Engineer the discretion to waive the requirement for minimum carbonates content if the material was determined to be equally suitable for its intended use. The 1986 amendment removed the waiver provision. The 50 percent minimum carbonate content provision has been in effect since 1969 or 1970. Section 915 is less than two pages within a 786-page document ("the Blue Book") entitled FDOT Standard Specifications for Road and Bridge Construction, 1986 Edition. The October 1986 version of Section 915 is in a separate two-page supplement. The Blue Book covers a vast array of subjects relating to contracts, construction, and materials for roads and bridges. The specifications change to keep up with developments in technology. The changes are placed in packets of supplemental provisions, like the current version of Section 915, and those provisions are eventually printed in a new edition of the "Blue Book". The standard specifications are incorporated into all FDOT road and bridge construction contracts, along with relevant supplements, and with "special provisions" which address the unique requirements of the project under contract. The SOP is a 28-page document which (in its words) "...establishes the Florida Department of Transportation's policy of accepting Limerock, Cemented Coquina and Shell Base materials produced for Department use through a producer Quality Control (QC) Program... [and] ...provides the producer with information related to the methods and levels of source approval, the minimum requirements for QC programs and approval, and the criteria by which the Department will maintain that approval. ..." (Petitioner's Exhibit #3, SOP, p. 1) Neither Section 915 nor the SOP have been adopted as rules pursuant to the requirements of Section 120.54, F.S. Blackhawk was an FDOT approved source of cemented coquina shell material in 1983 and 1984. The mine was given conditional approval in January 1985, for six months. The conditional approval expired in July 1985, and approval was suspended for failure to meet the carbonates requirement of Section 915. Blackhawk was not granted a waiver. While it was approved, Blackhawk provided material for two FDOT projects and for several other projects that required FDOT approval. Approximately one- third of its projects had a requirement that the rock come from a DOT-certified source. Blackhawk lost an ongoing contract on a county road project as a result of FDOT's suspension of its approval. Blackhawk continues in business, selling its material to sources which do not require FDOT approval. Blackhawk's President, Andrew Machata, has met with various individuals at FDOT regarding its status and Section 915 and the SOP. Initially, he was told that he had no administrative remedies, as FDOT personnel does not consider the process as subject to the Administrative Procedures Act. There is now pending a Section 120.57(1) F.S. proceeding related to Blackhawk's claim that it should be an approved source. (DOAH #85-4366) FDOT has promulgated administrative rules governing the prequalification of contractors to bid on FDOT projects, Chapter 14-22 FAC, and rules of procedure governing contract bidding and bid protests, Chapter 14-25 FAC. FDOT grants administrative remedies in both the prequalification procedure and in the bidding and bid award procedures. Blackhawk is not qualified to bid as a prime contractor of FDOT projects, nor is it seeking that qualification. It is seeking approval as a source of cemented coquina shell material, without which approval it cannot sell material to prime contractors for projects requiring FDOT approval.
Findings Of Fact Invitation to Bid (ITB) DOT Contract Number 7578 involves the mowing of various state roads in Citrus County, Florida. Citrus County is in District Seven of DOT. The ITB requires mowing, edging, sweeping and litter removal along state roads in Citrus County. The Petitioner, All Seasons is the current contractor performing the mowing services which are the subject of this protest. However, the ITB called for expansion of those services. The mowing contract had to be relet because All Seasons, opted not to renew its current contract because it felt that it was not making enough of a profit. The budget amount for the Contract Number 7578 protest was $180,000. The budget amount is the amount of money DOT has preapproved to spend for the contract. It is not the estimated amount DOT projects a contractor can perform the mowing contract for. The estimated amount is secret, but is generally close to the budgeted amount. Four bids were submitted for the mowing contract. The four bids were: Imperial Cabinets $ 70,201.05 Horticultural Industries $ 90,845.58 All Seasons $171,233.95 Mark Dunning Industries $181,119.61 In this instance, there was a large discrepancy among the bids on contract E-7578. The two lowest bidders were Imperial Cabinets and Horticultural Industries and were well below he budgeted amount. These two low bids were closer in proximity as to dollar amounts to each other and All Seasons and MDI's bids were closer in proximity to each other. The technical review committee (TRC) analyzed the bids and discussed whether or not the two lowest bidders were able to perform the contract. The TRC was concerned about whether the lowest bidder could perform the work required in the ITB at the price it bid. The TRC asked for information on the two lowest bidders from other districts. It did not receive any useful information. DOT did not inquire of the two low bidders. 1/ The TRC also consulted with DOT staff on the lowest bidder's prices. The staff thought the prices were low but could not state that the contract could not be performed the amounts which were bid. However, the TRC recommended rejection of all the bids to the awards committee. The TRC's recommendation was based on the speculation that the low bidders did not understand the scope of the mowing contract and that lack of understanding resulted in the bid prices of the two lowest bidders. However, there was nothing unique or confusing contained within the specifications of the ITB which would lead to the conclusion that a reasonable person could not understand. There is no way, just by looking at the bid proposal, to tell whether or not either firm could perform the contract at the prices. Additionally, there was no way to determine from the face of either firms bid if they did or did not understand the contract. In short, there was no factual basis for the TRC to find the low bids non-responsive and to recommend rejection of all the bids. The awards committee followed the recommendation and rejected all the bids. The awards committee utilized the same speculation the TRC had used its decision is as faulty. In this case, Petitioner relied on the same "evidence" as DOT regarding the inability of the two low bidders to perform the contract in order to demonstrate that the two low bidders were non-responsive. The evidence simply does not support a finding of non-responsiveness. Petitioner being the third place bidder has no substantive interest in this proceeding since it could not be awarded the mowing contract. Therefore, the bid protest should be dismissed.
Recommendation Based upon the findings of fact and the conclusions of law, it is, RECOMMENDED: That the contractors protest bid for Contract Number E-7578 be dismissed. DONE and ENTERED this 27th day of November, 1996, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER 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 27th day of November, 1996.
The Issue The issue presented for decision in this case is whether Respondent, the Florida Department of Transportation ("FDOT"), acted contrary to the agency’s governing statutes, rules or policies, or the proposal specifications, in rejecting the proposal of Petitioner, Old Tampa Bay Enterprises, Inc. ("Old Tampa Bay"), to RFP-DOT-97/98-1003, Bridge Tending/Maintenance and Repair Services for Five Movable Bridges, Sarasota and Manatee Counties (the "RFP" or "RFP 1003"), and awarding the contract to Intervenor, General Electric Industrial Systems ("GE"). GE also raises the issue whether Old Tampa Bay lacks standing because it submitted a materially false or fraudulent proposal.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following findings of fact are made: On or about April 10, 1998, FDOT issued RFP 1003, requesting proposals for a bridge-tending, maintenance and repair service contract for five movable bridges within Manatee and Sarasota Counties. The contract would run for a period of one year, with an option for two annual renewals. FDOT contemporaneously issued RFP 1004, for the performance of identical bridge tending, preventive maintenance and repair services on four other movable bridges in Sarasota County. The RFP required, among other things, that proposers must employ an experienced bridge tender supervisor and an experienced registered electrical engineer. The RFP required that the contractor must be licensed to perform electrical and mechanical work in the State of Florida, and that a copy of the license be submitted as part of the proposal package. RFP 1003, Section 1.7.5. (In this and some other sections of the RFP, FDOT employed the undefined term "Consultant" rather than the term "Contractor" or "Proposer" used through the bulk of the RFPs. Absent a clarifying explanation, it is assumed that all three terms are used interchangeably.) The RFP required the proposers to provide the names of "key personnel," a resume for each of these individuals, and a description of the functions and responsibilities of each key person relative to the task to be performed. The approximate percent of time to be devoted exclusively to this project was also to be provided. FDOT’s prior written approval was required for the removal and substitution of any of the key personnel proposed. "Key personnel" included project engineers, bridge superintendents, mechanics, and electricians. Under the heading "preventive maintenance," the RFP required the proposers to provide "sufficient and competent personnel to perform the inspection, troubleshooting and work for all bid item requirements." The electrician must be "a licensed electrician with experience in industrial maintenance and troubleshooting." RFP 1003, Exhibit A-3, Section 3.0. The RFPs incorporated by reference the "Bridge Operations and Maintenance Manual" (the "Bridge Manual"), an FDOT document establishing procedures for bridge operations and maintenance requirements statewide. The Bridge Manual set forth the following qualifications for electricians: All electricians working on movable bridges or electrical equipment on any bridge must hold at least a journeyman electrician’s license in at least one Florida county and have skills in industrial electrical work. Ability to read and understand blueprints and written instructions. Ability to communicate effectively orally and in writing. Ability to plan, organize and coordinate work assignments. Ability to install, alter, repair and maintain electrical systems, equipment and fixtures. Bridge Manual, pages 2-3. Another section of the Bridge Manual elaborated on the minimum qualifications for electricians as follows: All electricians working on movable bridges or electrical equipment on any bridge must hold at least a journeyman electrician’s license in at least one Florida county and have at least two years experience in industrial electrical work. Vocational/training in industrial electricity can substitute at the rate of 720 classroom hours for each year of the required experience. After employment, they should attend the Bridge Inspection school and Movable Bridge Inspection school. They should also receive continuing training on motor controls, National Electric Code and applicable safety training. They should be able to read blueprints, and written instructions, communicate effectively, be able to plan, organize, and coordinate work assignments, and have the ability to install, alter, repair and maintain electrical systems, equipment and fixtures. Bridge Manual, pages 2-17 through 2-18. The RFP awarded a maximum of 100 points to responsive proposals. A maximum of 60 points could be awarded for the technical proposals, which were scored by a three-member technical committee that included Hendrik Ooms, FDOT’s assistant maintenance engineer for District One. Each member of the committee scored the proposals independently. Their scores were then averaged to arrive at the final technical score. The RFP listed Richard Marino, the head of contracts for District One, as the project manager who should receive all technical questions from prospective proposers. Regardless of the formal designation, Mr. Ooms was in fact the project manager and the person capable of answering technical questions. The technical proposal scoring subsumed a maximum of 35 points for the "management plan," including 20 points for identified "key personnel." A maximum of 35 points could be awarded for the price proposal. The low price proposal received the maximum 35 points, with the remaining proposals scored according to the formula: (Low price/proposer’s price) x Price points = Proposer’s total points. The technical committee was not aware of the contents of the price proposals prior to scoring the technical proposals. Finally, proposers could obtain 5 preference points for Disadvantaged Business Enterprise (DBE) participation of at least 10 percent of the total dollar amount of the contract, or 2 preference points for DBE participation of between 5 and 10% of the total dollar amount. On or about May 11, 1998, three companies submitted proposals for RFP 1003 and 1004: GE; Old Tampa Bay; and C & S Building Maintenance Corporation. GE is the incumbent vendor for these contracts. Until this bid, Old Tampa Bay was a subcontractor to GE on these contracts. On May 22, 1998, FDOT posted the proposal tabulations indicating the intended awardees of the two contracts. Old Tampa Bay was the apparent awardee of the contract for RFP 1003, the contract at issue in this case, with a total score of 79.67 points. GE was the second high scorer, with 79.45 points. GE was the apparent awardee of the contract for RFP 1004. As to RFP 1003, the averaged technical score for Old Tampa Bay was 39.67 points. The averaged technical score for GE was 49 points. All three members of the technical committee awarded GE more points than Old Tampa Bay, though Mr. Ooms saw a greater difference between the two bids than did the other committee members, Richard Marino and Kenneth Clark. Mr. Marino awarded 56 points to GE and 52 points to Old Tampa Bay. Mr. Clark awarded 53 points to GE and 47 points to Old Tampa Bay. Mr. Ooms awarded 38 points to GE and 20 points to Old Tampa Bay. Despite the difference in the technical proposals, Old Tampa Bay was named the intended awardee for RFP 1003 on the strength of 35 points for its significantly lower price proposal ($539,915 per year, versus $621,340 per year for GE) and obtaining the full 5 points for DBE participation. GE was awarded 30.45 price points according to the RFP formula and obtained no DBE points. No formal protest having been received, FDOT moved forward to the next step in the award process. The agency sent substantially identical letters to Old Tampa Bay as the intended awardee of the contract for RFP 1003 and to GE as the intended awardee of the contract for RFP 1004. The letters, dated June 15, 1998, and signed by Felipe Alvarez, FDOT’s purchasing agent, informed the vendors that they had each proposed the same people as "key personnel" who would devote 100 percent of their time to the project. This situation "concerned" FDOT, as these persons obviously could not devote 100 percent of their time to RFP 1003 as employees of Old Tampa Bay and 100 percent of their time to RFP 1004 as employees of GE. The letters requested each of the vendors to clarify the employment of the following persons: Mr. W. Bruce Chapman, whom GE had identified as its bridge superintendent and Old Tampa Bay had identified as its project manager; Mr. Gary Berkley, whom GE had identified as its mechanic and Old Tampa Bay had identified as its primary mechanic; Kelly Green, whom both GE and Old Tampa Bay had identified as primary electrician; and John Vance, whom both GE and Old Tampa Bay had identified as supporting electrician. The letters concluded with the following statement: The Proposal Package stated that if awarded the Agreement, the Consultant is to provide the services of the key personnel proposed. Removal and substitution of any of the key personnel proposed will require the Department’s prior written approval. Please advise the Department if your firm plans to provide the same key personnel or will be providing an equivalent substitution; equivalent meaning as of [sic] the same caliber, experience, and expertise or better than the individual originally proposed. (Emphasis added.) As noted in FDOT’s letter, the Old Tampa Bay proposal listed Kelly Green and John Vance as electricians. Old Tampa Bay’s proposal emphasized that Vance and Green were the current electricians performing electrical maintenance and repairs on the bridges, with nine years combined experience on the District One contract. Old Tampa Bay's proposal emphasized the ease of transition to the new contract that FDOT would enjoy should it select Old Tampa Bay: There will be no transition pain from the existing prime contractor [GE] to [Old Tampa Bay] as ALL personnel currently serving are already on the [Old Tampa Bay] payroll and have been for several years. FDOT will have no new relationships to establish or unknowns with which to be concerned. (Emphasis in original.) Old Tampa Bay’s proposal emphasized in several places that Old Tampa Bay would provide the same electricians who were already working on the bridges. In describing its technical approach to the electrical systems, Old Tampa Bay emphasized that its electricians would require no orientation before commencing work: The electrical system is a critical link in the operation of the bridge. Its maintenance is crucial to reliable operation. [Old Tampa Bay's] comprehensive maintenance program is designed to meet and exceed contract requirements. The [Old Tampa Bay] electrician (Resume attached) is knowledgeable and experienced in the performance of this program. He has performed this service under other FDOT contracts. Old Tampa Bay's proposal emphasized the experience of its electricians with respect to the electro-mechanical control systems, stating that "All [Old Tampa Bay] service personnel including electricians have been trained to work on, maintain, and troubleshoot as required each intricate system." Old Tampa Bay emphasized the experience of Vance and Green, and stated that they had "never failed to correct any problems on this system on any of the bridges in this contract." Old Tampa Bay made similar representations in regard to equipment malfunctions and computerized control systems, emphasizing the quick, successful responses by and experience of its electricians. The evidence indicated that Old Tampa Bay knew, or should have known, at the time it submitted its proposal, that John Vance had no intention of working for Old Tampa Bay on these contracts. Old Tampa Bay included Mr. Vance’s name and license in its proposal without his consent. Mr. Vance never stated orally or in writing that he agreed to be included in Old Tampa Bay's proposal. Old Tampa Bay never asked Mr. Vance’s permission to include his name as a proposed supporting electrician. Old Tampa Bay never asked Mr. Vance’s permission to include a copy of his electrical contractor’s license in Old Tampa Bay's proposal. About two weeks prior to the proposal submission date, Old Tampa Bay's president, Donald Abernathy, asked Mr. Vance for a copy of his license, but did not tell him that Old Tampa Bay intended to include the license in its proposal. Rather, Mr. Abernathy told Mr. Vance that Old Tampa Bay needed the license for purposes related to insurance. Mr. Vance refused to provide Old Tampa Bay with a copy of his license. Old Tampa Bay obtained a copy of Mr. Vance’s license by making a public records request to Manatee County, and submitted that copy with its proposal. Mr. Bruce Chapman has served for nearly four years as a bridge tender supervisor, employed by Old Tampa Bay under a GE contract with the FDOT. At the time of the hearing, Mr. Chapman was still an Old Tampa Bay employee. Mr. Chapman assisted Mr. Abernathy in trying to obtain permission of various people to use their names in Old Tampa Bay's proposal. Mr. Chapman testified that he knew from conversations with Mr. Vance that Mr. Vance did not want to work for Old Tampa Bay on the new contract. Old Tampa Bay also knew at the time of proposal submission that it had obtained no assurances from Kelly Green that he would work for Old Tampa Bay on the contract for RFP 1003. As detailed below, Mr. Green ultimately signed a letter-of-intent to work for GE on the contract for RFP 1004. Mr. Abernathy contended that Old Tampa Bay was entitled to include Vance and Green in its proposal without permission because they were Old Tampa Bay employees. However, Mr. Abernathy also conceded that Vance and Green were at-will employees, and his prior attempt to secure their permission to use their names in the Old Tampa Bay proposal was a tacit admission that Old Tampa Bay had no control over them. Further, in the fall of 1997, Mr. Abernathy attempted to obtain the signatures of Mr. Vance and several other bridge employees to a non-compete agreement for the purpose of binding them to Old Tampa Bay. Mr. Vance refused to sign the agreement. Old Tampa Bay provided payroll services to Vance and Green during their work on the bridges under GE’s existing contract with the FDOT, but Old Tampa Bay never supervised the work of the bridge electricians, never provided Vance or Green with the tools, equipment or supplies they used in their work as bridge electricians, and never had any control over the day-to- day activities of any electricians on any FDOT contract. The electricians worked on a daily basis with GE’s project engineer, Douglas Blake. Mr. Blake had trained Mr. Vance on bridge electrical equipment when the latter commenced work on the bridges. The electricians looked to Mr. Blake for technical and substantive assistance in working on the bridges. Mr. Vance testified that he considered himself an employee of GE. Mr. Green did not testify at the hearing. On June 26, 1998, both Old Tampa Bay and GE submitted responses to the FDOT letter of June 15, 1998. In a letter signed by William Trainor, contract leader, GE set forth its staffing plan for RFP 1004. GE identified the following as "key personnel" proposed for the positions discussed in the FDOT letters: John Vance as bridge superintendent (replacing W. Bruce Chapman); Bruce Morris as mechanic (replacing Gary Berkley); Kelly Green as primary electrician; and John Vance as Supporting electrician. GE attached résumés for each of these personnel. GE indicated that it would utilize PRM, Inc. as a subcontractor to secure the required contract personnel for the contract under RFP 1004, and GE attached letters-of-intent for employment for each of the named key personnel. Each of these letters was signed either by the named employee or by the president of PRM, Inc. FDOT accepted GE’s response in full. The award of the contract for RFP 1004 to GE was not protested. In a letter dated June 26, 1998, signed by Donald R. Abernathy, president, Old Tampa Bay proposed the following key personnel: W. Bruce Chapman as project manager; Gary Berkley as mechanic; Charles Adam Kenney as bridge superintendent (not mentioned in the FDOT letter); and Kelly Green as primary electrician. Old Tampa Bay attached résumés for each of these personnel. The letter made no mention of a supporting electrician. Old Tampa Bay also attached agreements of the employees to serve in their respective positions. However, the signature line on Kelly Green’s statement of acceptance was left blank. Mr. Abernathy testified that he asked Mr. Green to sign the document indicating his acceptance of employment with Old Tampa Bay, but Mr. Green refused. Mr. Abernathy did not reveal this information to FDOT, continuing to maintain that he was within his rights as Mr. Green's employer to include his name in the proposal. FDOT knew from its review of the GE submission that Mr. Green had in fact signed a letter of intent for employment with PRM, Inc. to work on the GE contract. Mr. Alvarez, the FDOT purchasing agent, acted chiefly as a coordinator and as the person ensuring that the procedural requirements of competitive bidding laws were met by FDOT. He admittedly lacked the expertise to make decisions as to the technical aspects of the project. Thus, Mr. Alvarez forwarded the vendors’ responses to Mr. Ooms, the project manager, for his evaluation. Mr. Ooms is a professional engineer, and for the past five years has supervised the operations of all nine bridges covered by RFPs 1003 and 1004. In a memorandum to Mr. Alvarez, dated July 2, 1998, Mr.. Ooms reported his findings and conclusions regarding the vendors’ submissions. As noted above, he found the GE submission acceptable in its identification of PRM, Inc. as a subcontractor and its naming of Vance, Morris, and Green as intended key personnel. Mr. Ooms found acceptable the submission of Old Tampa Bay insofar as it named Chapman, Kenney, and Berkley as key personnel. However, Mr. Ooms noted that the Old Tampa Bay submission provided no documentation of Kelly Green’s commitment to work for Old Tampa Bay. Mr. Ooms also noted that the Old Tampa Bay submission made no mention of John Vance, who had been listed as support electrician in Old Tampa Bay’s original proposal, and listed no substitute who would take over those duties. Mr. Vance had also accepted an offer from PRM, Inc. to work on the GE contract. Thus, Mr. Ooms concluded that the proposed key personnel roster submitted by Old Tampa Bay was not acceptable. By letter to Donald R. Abernathy dated July 8, 1998, Mr. Alvarez conveyed to Old Tampa Bay the "discrepancies" found by FDOT in the Old Tampa Bay submission of June 26, 1998. While stating that FDOT accepted the proposal of Chapman, Kenney, and Berkley for their respective positions, Mr. Alvarez pointed out the problems noted by Mr. Ooms as to Green and Vance. The letter concluded that "the Department still requires that your firm provide, in writing, clarification as to the positions of Primary and Supporting Electricians," and required the response by July 13, 1998. Old Tampa Bay responded by letter to Mr. Alvarez from Mr. Abernathy dated July 10, 1998. The letter provided no explanation as to Mr. Green’s unsigned agreement or Old Tampa Bay's failure to mention Mr. Vance or otherwise address the position of supporting electrician. The letter stated no objection to any of the conclusions contained in FDOT’s letter of July 8, 1998. The letter took no issue with the standard described for "equivalent" electricians. Old Tampa Bay's letter stated that it had selected Mr. Gary McCormick as its primary electrician. The letter noted that Mr. McCormick was finishing a project but would be available for this contract no later than July 27, 1998. The letter stated that while Mr. McCormick was a "skilled and valuable electrical and hydraulic specialist," he had never been required to have an electrician’s license by any prior employer. The letter requested that FDOT waive the license requirement for 90 days, during which time Mr. McCormick would obtain the required license. The letter attached Mr. McCormick’s résumé, which indicated that he had been involved with the Stickney Point bridge from September 1997 until July 1998. The résumé provided no dates for any of his other employment since 1973. The résumé indicated that most of Mr. McCormick’s electrical experience involved repair and installation of elevators. Old Tampa Bay's submission made no attempt to relate Mr. McCormick’s elevator experience to the electrical specifications of the RFP. The letter further stated that Old Tampa Bay was "actively seeking" a supporting electrician, and that Mr. Abernathy would fill the position until the search was completed over the "next few weeks." The letter gave no further indication of the status of Old Tampa Bay's attempt to locate a support electrician. The letter attached the résumé of Mr. Abernathy. Mr. Alvarez forwarded Old Tampa Bay’s July 10, 1998, letter to Mr. Ooms for his review. By memorandum dated July 15, 1998, Mr. Ooms responded to Mr. Alvarez, concluding that the proposed key personnel roster of Mr. McCormick and Mr. Abernathy as primary and supporting electricians was not acceptable. Mr. Ooms’ memorandum first addressed Old Tampa Bay's original statements in its proposal as to Vance and Green, noting that Old Tampa Bay represented both electricians as follows, in his words (punctuation and capitalization not corrected): [Mr. Green] "has worked on FDOT movable bridge contracts for the past 4 years in Sarasota and Manatee counties. His duties range from preventive maintenance to emergency repair" . . . "an intimate knowledge on the operation of bridges so that during malfunction he can use the bypass functions to keep bridge down time and repair time to a minimum." Mr. Green has a Journeyman’s electricians license. * * * [Mr. Vance] has worked on FDOT movable bridge contracts for the past 5 years in Sarasota and Manatee counties. The maintenance he performs covers the entire bridge--the gates, lock motors, drive motors, variable frequency drives, programmable controllers, contactors, limit switches, control panels and resistors." "intimate knowledge on the operation of bridges so that during malfunction he can use the bypass functions to keep bridge down time and repair time to a minimum." Mr. Vance has a [sic] Electrical Contractor’s license. Mr. Ooms contrasted Mr. Green’s qualifications with those of Mr. McCormick, whose résumé showed that he had less than one year’s experience with bridges, did not hold a journeyman electrician’s license, and thus was not "an equivalent substitution for Mr. Kelly Green." Mr. McCormick’s résumé listed his current employer as "Acutec Inc.," his position as "project electrical foreman," and stated that he was "currently finishing Stickney Point drawbridge rehabilitation project. In charge of electrical, PLC, and hydraulic systems installation, trouble-shooting, and start-up. Working closely with Gregg Martin of FDOT, Sarasota." Mr. Ooms testified that Mr. McCormick did not have the qualifications claimed in his résumé. He testified that Mr. McCormick was not in charge of electrical, PLC and hydraulic systems installation on the Stickney Point bridge. He testified that Mr. McCormick was strictly a "wire puller," with "no experience whatsoever to do this type of work." Mr. Ooms took issue with Mr. McCormick’s claim that he was "in charge" of the installation of the PLC, or programmable logic controls. Mr. Ooms testified that Mr. McCormick’s employer, Acutec, was involved with writing the PLC program, setting up the parameters, checking out the hydraulics, and performing the interfacing, but that Mr. McCormick was simply running wires from point-to-point pursuant to instructions from others. Mr. Ooms testified that he knew these facts from watching at first-hand the work being performed on the Stickney Point bridge. Mr. Ooms did not call Acutec to verify the statements in Mr. McCormick’s resume. Mr. Ooms stated that there was no need to call Acutec, as he was out on the bridge and could see for himself what Mr. McCormick was doing. PLCs, or programmable logic controls, are the means by which newer bridges are controlled by computer. The PLC sequences the computer program to constantly monitor the condition and operation of the bridge. The PLC technology is not unique to bridges. It is common in many manufacturing operations, and is in place on two of the five bridges covered by RFP 1003. The remaining three bridges have a manual relay control system. Old Tampa Bay did not dispute that PLC experience is necessary to perform the work as an electrician on this contract. Mr. Ooms noted that Mr. McCormick’s résumé claimed PLC experience, but that when the time came for the contractor to deliver the laptop computer with the PLC programs to run the renovated Stickney Point bridge, Mr. McCormick could not even run the program on the computer. Mr. Ooms testified that if one cannot run the computer program, one cannot do anything on a computer controlled bridge. Mr. Ooms’ testimony as to the qualifications of Mr. McCormick is credited. While Mr. Ooms might have confirmed his conclusions with Mr. McCormick’s employer, he cannot be found to have acted arbitrarily in relying on his own extensive observations of Mr. McCormick’s job performance. Old Tampa Bay offered no evidence to dispute the factual underpinnings of Mr. Ooms’ decision that Mr. McCormick was not an equivalent substitute for Kelly Green. Mr. Ooms’ July 15, 1998, memorandum also rejected Mr. Abernathy as the temporary supporting electrician. As quoted above, the memorandum noted Old Tampa Bay's representation that John Vance, the supporting electrician it originally proposed, has worked on FDOT movable bridge contracts for the past five years in Sarasota and Manatee counties, has intimate knowledge of these bridges, and has an electrical contractor’s license. Mr. Ooms noted that Mr. Abernathy does not have an electrical contractor’s license. Mr. Ooms also took issue with Mr. Abernathy’s résumé statement that he has acted as a bridge inspector for the past eight years for Kisinger Campo and Associates, a company that FDOT hires to perform bridge inspections. Mr. Ooms wrote that in the five years that FDOT has let out the operations and maintenance contracts, he has never "seen or known of Mr. Abernathy visiting a Sarasota or Manatee county bridge or troubleshooting a bridge problem." He testified that Kisinger Campo could not have used Mr. Abernathy as a bridge inspector because he lacked the required engineer’s license or certification as a bridge inspector. Mr. Ooms admitted that Kisinger Campo does not always tell him who is performing the inspections. Mr. Ooms made no inquiries of Kisinger Campo to verify Mr. Abernathy’s résumé. Mr. Abernathy testified that he was in fact an electrical inspector for Kisinger Campo for eight years and that in 1997 he personally performed inspections on every bridge covered by RFP 1003, including the electrical, lighting, and PLC systems. Mr. Abernathy conceded that he does not have an electrical contractor’s license. Mr. Abernathy’s testimony is credited as to his experience as a bridge inspector. In the case of Mr. McCormick, Mr. Ooms reasonably relied on his own extensive observations. As to Mr. Abernathy, Mr. Ooms attempted to rely on what he did not observe. Mr. Ooms chose to assume, without knowledge or verification, that Mr. Abernathy’s résumé was false. This assumption was arbitrary, and cannot be credited. Mr. Ooms’ decision to reject Mr. Abernathy was nonetheless reasonable. Mr. Abernathy did not possess the requisite license, and admitted that his most recent experience in actually performing bridge electrical maintenance and repair was more than twenty years ago. By letter to Mr. Abernathy dated July 17, 1998, Mr. Alvarez conveyed FDOT’s rejection of Old Tampa Bay’s proposal pertaining to the electrician positions. The reason for rejection was stated as follows: As stated within the Request for Proposal Package, if you are proposing to substitute key personnel you must provide an equivalent substitution; equivalent meaning as of [sic] the same caliber, experience, expertise or better than the individual originally proposed. . . . Please understand, the Department is looking forward in [sic] entering into an Agreement with your firm, [sic] however, it cannot accept anything less than what was originally proposed. Mr. Alvarez’ letter enclosed Mr. Ooms’ memorandum of July 15, 1998, and offered Old Tampa Bay another opportunity to submit substitute electricians no later than July 27, 1998. By letter from Mr. Abernathy to Mr. Alvarez, dated July 27, 1998, Old Tampa Bay submitted a new list of proposed substitutes. The text of the letter stated, in full: We have selected Mr. Steven Manning, Master Electrician License Number 3994, Hillsborough County to be our primary electrician. Attached is his resume. We have selected Mr. Adrian Cook as the supporting electrician, Journeyman License Number JE776, Hillsborough County. We have selected Mr. Wayne Cano as an electrician’s helper. Hillsborough County licenses have full reciprocity with Manatee and Sarasota Counties. Résumés of all three proposed employees were attached, along with copies of the relevant licenses and certificates of completion of various professional training courses. Mr. Manning’s résumé contained sketchy descriptions of the kinds of electrical work he had performed, and gave no indication that he had any experience working with computers or PLCs. Mr. Manning’s résumé revealed no experience with moveable bridge maintenance or repair. Mr. Manning had no experience as an electrician on the FDOT bridges. Mr. Manning’s résumé indicated that his experience included industrial electrical experience intermittently during eight years of electrical work. The résumé indicated "industrial and commercial electrical work," "working in fuel terminals, working with motor controls," "remodeling tenant spaces," "working with new commercial," "working with commercial remodeling, and service work," "traveling around Florida and Georgia remodeling Pizza Huts," "residential and commercial sales, estimating jobs, job foreman, billing and scheduling, handling of permits," and "working with industrial and commercial, service work, remodeling and new construction." Old Tampa Bay's submission offered no specific information or explanation of how Mr. Manning’s varied experience related to the specifications for electrical maintenance and repair in the RFP. Old Tampa Bay had obtained Mr. Manning’s name by calling an electrical company, Southern Power and Controls, and asking for recommendations of personnel with qualifications and experience equivalent to Mr. Green’s. Southern Power and Controls is an industrial electrical firm specializing in industrial controls, motor controls, switch gears, limit switches, and PLCs. Old Tampa Bay would have paid a finder's fee to Southern Power & Controls for any employees who went to work for Old Tampa Bay on this contract. Old Tampa Bay provided Southern Power and Controls with the documentation it had submitted to FDOT regarding the qualifications and experience of Vance and Green. Robert Harwell, a registered electrical engineer and principal of Old Tampa Bay, had discussions with Southern Power and Controls as to the qualifications of the candidates it sought. No person from Southern Power and Controls appeared at the hearing to explain the process by which they selected Mr. Manning. No person from Old Tampa Bay ever interviewed Mr. Manning. Mr. Manning did not testify at the hearing. Old Tampa Bay proposed Adrian Cook as a supporting electrician. Mr. Cook’s résumé indicated that he was a licensed journeyman electrician, with four years’ experience as an electrician and two years as an apprentice. Mr. Cook’s résumé indicated two years of unspecified commercial and industrial work, but no moveable bridge experience. Old Tampa Bay obtained Mr. Cook’s name from Southern Power & Controls, asking for personnel with qualifications and experience equivalent to Mr. Green’s. No person from Southern Power & Controls appeared at the hearing to explain the rationale for choosing Mr. Cook. No person from Old Tampa Bay ever interviewed Mr. Cook. Mr. Cook did not testify at the hearing. Old Tampa Bay submitted Mr. Wayne Cano as an "electrician’s helper." Old Tampa Bay did not specify what function Mr. Cano would serve or what actions he would perform as an "electrician’s helper." Neither the RFP nor Old Tampa Bay's proposal contains any mention of an "electrician’s helper." Mr. Cano’s résumé did not indicate an electrician’s license. Old Tampa Bay did not state that it had any intention to require Mr. Cano to obtain an electrician’s license. Mr. Cano’s résumé did not indicate any moveable bridge experience or experience on other FDOT projects. Again, Mr. Alvarez forwarded the Old Tampa Bay letter and attachments to Mr. Ooms for his review. Mr. Ooms provided his response by memorandum dated August 6, 1998. Again, Mr. Ooms outlined the qualifications and experience of the electricians originally proposed, Kelly Green and John Vance, as set forth in Old Tampa Bay's own proposal. Mr. Ooms wrote as follows (punctuation and capitalization not corrected): Mr. Green’s experience were [sic] listed as follows. "has worked on FDOT movable bridge contracts for the past 4 years in Sarasota and Manatee counties. His duties range from preventive maintenance to emergency repair . . . an intimate knowledge on the operation of bridges so that during malfunction he can use the bypass functions to keep bridge down time and repair time to a minimum." Mr. Green has a Journeyman’s electrician license. Mr. Vance’s experience were [sic] listed as follows. "has worked on FDOT movable bridge contracts for the past 5 years in Sarasota and Manatee counties." "The maintenance he performs covers the entire bridge-- the gates, lock motors, drive motors, variable frequency drives, programmable controllers, contactors, limit switches, control panels and resistors." "intimate knowledge on the operation of bridges so that during malfunction he can use the bypass functions to keep bridge down time and repair time to a minimum." Mr. Vance has a [sic] Electrical Contractor’s license. Mr. Green and Mr. Vance each have over four years of "on the Bridge" experience trouble shooting non functioning systems. They have worked on nine different bridges that were 30-40 years old with antique controll [sic] systems and on bridges recently rehabilitated with modern computer controlled systems. They have years of experience in reading and analyzing bridge ladder logic programs and trouble shooting problems and solutions. All these bridges were operational and any loss of service was quickly reported. An outage can easily block traffic for several miles in minutes generating calls from the sherrifs [sic] department. In addition, any breakdown in service has severe political consequences due to the Ringling bridge and Anna Maria Bridge replacement program. A problem on Ringling Bridge can cause a [sic] hour detour and missed flights. On page C-1 of the contract it states "The Contractor’s personnel that will perform the work required by this Section shall be trained and well experienced in start-up and maintenance of equipment . . . and will have headquarters within Sarasota/Manatee County" . . . On page A-3.2 is [sic] states "the Contractor shall initiate corrective action within fifteen (15) minutes following the malfunction." further down on Page C-1 of the contract "the Contractor agrees to provide men and equipment to a bridge sites [sic] within 30 minutes of notification of any emergency equipment failure". Mr. Ooms contrasted the experience and qualifications of the proposed substitutes as follows (punctuation and capitalization not corrected): Mr. Steven Manning experience [sic] in industrial electrical work does not start until 1997. It does not show any bridge related work. His training certificate in Electrical ladder Drawings" is for a one day 7 contact hours session. The "well experienced" requirement is not clearly indicated by his resume. Mr. Adrian Cook also does not show any bridge related work and the "well experienced". Mr. Wayne Cano has 11 years of industrial experience but no bridge experience or electricians license. In conclusion Old Tampa Bay enterprises needs to provide us with equivalent substitutions. Specifically licensed electricians with a minimum of four years experience in diverse bridge electrical configuration; with old relay logic operation, well experienced in PLC controllers from various manufactures [sic]; the ability to read and interpret ladder logic drawing; the ability to program plc’s. The Department’s inclusion of response time in the contract clearly indicates our desire for prompt and efficient emergency repair work. In other words the Department would like the equivalent of Mr. Green and Mr. Vance in the original proposal who’s [sic] experience will "keep bridge down time and repair time to a minimum." By letter to Mr. Abernathy dated August 13, 1998, Mr. Alvarez forwarded FDOT’s rejection of Old Tampa Bay’s proposed substitutes. The letter essentially reiterated the contents of the memorandum quoted above, and informed Old Tampa Bay that it would have one last opportunity to provide FDOT with equivalent or better substitutions for the electrical key personnel. Old Tampa Bay’s response would be due no later than August 24, 1998. Mr. Alvarez testified that as to this and his prior letters to Mr. Abernathy, he essentially acted as a conduit for the actual decision-maker, Mr. Ooms. Mr. Alvarez wrote the letters because he was the designated contact person in the FDOT contracts office, not because of any personal expertise or authority he possessed to deal with the issue of the qualifications of the proposed key personnel. By letter from Mr. Abernathy to Mr. Alvarez, dated August 21, 1998, Old Tampa Bay informed FDOT that "we are unable to locate electricians which meet or exceed the qualifications of those we proposed, i.e., Mr. Green and Mr. Vance. Please proceed as necessary." Old Tampa Bay’s letter did not take issue with any of the conclusions set forth in Mr. Alvarez’ letter of August 13, 1998. On August 24, 1998, FDOT posted a revised proposal tabulation finding Old Tampa Bay nonresponsive and listing GE as the intended awardee of the contract for RFP 1003. At the hearing, Mr. Ooms testified that he did not know Mr. Manning, Mr. Cook, or Mr. Cano, had no personal knowledge of their background or experience, and relied on their résumés in making his decision. Mr. Ooms felt that Mr. Manning, while a master electrician, lacked sufficient experience on PLCs and had no experience working on bridges. Mr. Ooms noted that the only indication of electrical ladder drawing or computer experience on Mr. Manning’s résumé was a seven-hour continuing education course in electrical ladder drawing. Mr. Ooms’ undisputed testimony was that a single seven-hour course was insufficient to provide the expertise needed to perform the duties required of an electrician on these bridges. Mr. Ooms admitted that John Vance and Kelly Green lacked PLC experience when they started working on the bridges, and were trained by FDOT. However, Mr. Ooms rejected Old Tampa Bay’s suggestion that Mr. Manning could be similarly trained on the job. Vance and Green were trained in connection with the installation of PLC equipment on the Cortez Bridge in 1996. Mr. Ooms testified that this training was simply a part of the rehabilitation of the bridge, and that PLC experience was not a prerequisite at the time Vance and Green were hired. Mr. Ooms further distinguished this situation by noting that the issue here is not simply qualifications, but equivalency. Mr. Ooms stated that because Old Tampa Bay’s winning proposal was based on the presence of Vance and Green, any substitutes for Vance and Green must not only meet the RFP specifications but must be equivalent to the experience of Vance and Green, which included PLC experience. Mr. Ooms testified that he rejected Adrian Cook for the same lack of PLC experience. Mr. Cook held the required journeyman electrician’s license, but his résumé gave no indication of PLC or troubleshooting experience. Mr. Ooms testified that he called Mr. Cook’s current employer, who vouched for him as a "good man," but provided no details as to his PLC experience. Mr. Ooms also admitted that he did not ask the employer about Mr. Cook’s PLC experience. As to Mr. Cano, Mr. Ooms testified that he appeared well qualified but lacked the required journeyman electrician’s license, and lacked bridge experience. Mr. Ooms was impressed by Mr. Cano’s PLC and ladder logic experience, and might have approved him but for the lack of the required license. Mr. Ooms acknowledged that Kelly Green did not have his journeyman electrician’s license when he started work on the bridges. Mr. Ooms testified that he was unaware of that fact at the time Mr. Green was hired. Douglas Blake, project engineer for GE, affirmed that in the five years GE has been performing bridge operations and maintenance, FDOT has never asked any electrician to produce a license. Mr. Blake testified that performance of an electrician’s job on these bridges does not require permitting, and that there is no license exposure to an electrician working these jobs. Mr. Blake’s opinion was that the license requirement is merely a contract tool FDOT can use to eliminate substandard bids. No witness for FDOT assented to Mr. Blake’s characterization of the license requirement. FDOT’s consistent position was that a prospective electrician must have at least a journeyman electrician’s license, as set forth in the RFP and the Bridge Manual. Mr. Blake testified that Manning, Cook, and Cano all appeared to be worthy candidates to be bridge electricians, insofar as their electrical technical qualifications appeared to compare favorably to those of Vance and Green. No evidence was presented that Mr. Ooms had any knowledge of Mr. Blake’s opinion at the time he made his decision, or that such knowledge would have altered that decision. Lane Tyus, a GE electrical engineer with experience on these bridges, likewise testified that the résumés of Manning, Cook, and Cano would pass his initial screening and that he would make a final decision in a face-to-face interview. No evidence was presented that Mr. Ooms had any knowledge of Mr. Tyus’ opinion at the time he made his decision, or that such knowledge would have altered that decision. At the hearing, Old Tampa Bay produced a list purporting to show 25 electricians whose hiring for bridge work was approved by FDOT for various districts during the period 1991 through 1998, despite the fact that none of the 25 had prior bridge experience. This list included Mr. Vance and Mr. Green in District One, where Mr. Ooms works. Mr. Ooms disclaimed knowledge as to the approval practices of other districts, which in any event have no relevance to this proceeding. Mr. Ooms again averred that this situation is different than that prevailing when Vance and Green were hired, because the substitutes here proffered by Old Tampa Bay must not only meet the RFP requirements but must be the equivalent of Vance and Green in experience and expertise. Mr. Abernathy testified that he believed the team of Manning, Cook and Cano was the equivalent of Vance and Green. He testified that any modern industrial electrician must have experience with PLCs, and will not necessarily spell-out that experience on his résumé. He testified that it was his "absolute firm belief" that no matter whose names he submitted to FDOT as substitute electricians, they would be rejected. Mr. Ooms testified that he neither favored GE nor disfavored Old Tampa Bay. He admitted having greater familiarity with GE’s personnel because they have been working on the bridges for the last five years. He testified that he considers it his professional obligation to work with whoever holds the contract. Aside from the obvious licensure deficiency for Mr. Cano, these proposed substitutes may well have been equivalent to Vance and Green. However, their equivalence could not be ascertained from Old Tampa Bay's submissions. Their résumés did not clearly establish their qualifications in areas that Old Tampa Bay knew or should have known were critical to FDOT. The agency made its expectations very clear to Old Tampa Bay as to what was expected of equivalent substitutes. Old Tampa Bay did nothing to expand upon the sketchy résumés of these persons, or to explicate the relationship between their experience and the work to be performed on the bridges. Mr. Ooms cannot be faulted for failing to consider information that the proposer did not provide. It is found that Mr. Ooms was not biased in rejecting Manning, Cook, and Cano. Old Tampa Bay argues that the disparity in the scoring of the technical proposals between Mr. Ooms and the other two evaluators demonstrates his bias in favor of GE. However, as noted above, all three evaluators gave GE the highest marks for RFP 1003. In fact, the scores for GE’s proposal given by the other two evaluators were significantly higher than the score Mr. Ooms gave to GE’s proposal. The fact that Mr. Ooms found an 18-point disparity between the proposal of GE and the proposals of the other two bidders does not of itself indicate bias in favor of GE on his part, any more than the fact that his score for GE was 15 to 18 points lower than the GE scores by the other evaluators indicates a bias against GE. FDOT demonstrated no bias against Old Tampa Bay in this process, providing Old Tampa Bay repeated opportunities to provide satisfactory substitutes for Green and Vance. Old Tampa Bay attempted to show disparate treatment by introducing evidence showing that FDOT allowed GE to substitute Kelly Green for an electrician named Charles Cave in 1995, after award of the previous contract, despite the fact that Green at the time had no experience working on the bridges and did not obtain a journeyman electrician’s license until approximately two months after he commenced work. Assuming arguendo that FDOT’s actions in awarding this contract may be attacked by showing different agency behavior in prior contracts, the evidence adduced by Old Tampa Bay is insufficient because it gives no indication of the qualifications of Charles Cave, the electrician replaced by Mr. Green. There is no way to determine whether Mr. Green was or was not an equivalent substitute for Mr. Cave, and thus no way to establish disparate treatment by FDOT from one contract to the next. Old Tampa Bay further asserts that FDOT’s treatment of Mr. Green when he commenced work indicates that FDOT had the discretion to allow Mr. McCormick to obtain his journeyman electrician’s license after commencing work. Assuming arguendo that Old Tampa Bay’s assertion is correct, the facts establish that the lack of a license was a secondary concern in the rejection of Mr. McCormick. Mr. Ooms testified that his rejection of Mr. McCormick was primarily based on lack of bridge and PLC experience, and the overstatement of qualifications on Mr. McCormick’s résumé. Even if Mr. McCormick possessed the required license, Mr. Ooms would have properly rejected him. Old Tampa Bay challenged FDOT’s allowing GE to make changes in its management personnel after being awarded the contract for RFP 1003. The three upper-level managers in question were located in Atlanta, had nothing directly to do with the operation of the bridges, and were not "key personnel" as described in the RFP and Bridge Manual. GE informed FDOT of the change in a courtesy letter, dated October 20, 1998, more than five months after submission of the original proposals. The RFP did not require these remote persons to be identified by name at all, let alone require GE to freeze them in place as a condition of its contract. As noted above, the facts established that Old Tampa Bay included the name of John Vance in its proposal though it knew or should have known that Mr. Vance had no intention of working for Old Tampa Bay on this project. Old Tampa Bay attempted to demonstrate that GE did substantially the same thing when it included the name of Mr. Lane Tyus in its proposal as its registered electrical engineer. Mr. Tyus indeed testified that he did not know that GE had included his name in the proposal at the time it was submitted, and was not made aware of his inclusion until some time after Old Tampa Bay filed its protest. However, Mr. Tyus also testified that he knew his résumé was kept on file by GE precisely for inclusion in proposals. Further, he testified that he has been involved with the contract for these bridges since 1992, that he was not surprised at his inclusion, and that he was prepared to undertake the tasks described in the GE proposal. Thus, there is no comparison between Mr. Tyus’ situation with GE and that of Mr. Vance with Old Tampa Bay. Finally, Old Tampa Bay attempted to demonstrate bias in the fact that FDOT allowed GE to submit John Vance's name as bridge superintendent for RFP 1004, despite his lack of experience in that position. However, Mr. Ooms testified that Mr. Vance was in fact more than qualified for the position, in that the training requirements set forth in the Bridge Manual for electricians such as Mr. Vance include all the requirements for bridge superintendents as well as electrical courses.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Department of Transportation enter a final order dismissing the protest filed by Old Tampa Bay Enterprises, Inc. and awarding the contract for RFP-DOT-97/98- 1003, Bridge Tending/Maintenance and Repair Services for Five Movable Bridges, Sarasota and Manatee Counties, to General Electric Industrial Systems. DONE AND ENTERED this 27th day of May, 1999, in Tallahassee, Leon County, Florida. LAWRENCE P. STEVENSON 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 27th day of May, 1999. COPIES FURNISHED: Jonathan Sjostrom, Esquire Steel, Hector & Davis LLP 215 South Monroe Street, Suite 601 Tallahassee, Florida 32301-1804 Brian F. McGrail, Esquire Office oif the General Counsel Department of Transportation 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0458 Robert A. Rush, Esquire Robert A. Rush, P.A. 726 Northeast First Street Gainesville, Florida 32601 Thomas F. Barry, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0458 Pamela Leslie, General Counsel Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0458
The Issue The issues presented in this hearing concern the request by Ortega Island, Inc. to be granted permission, by the State of Florida, Department of Environmental Regulation, to construct a bridge across the Stockton Canal in Duval County, Florida. The permit review is under the general authority of Chapters 253 and 403, Florida Statutes, and associated rules.
Findings Of Fact In July, 1980, Ortega Island, Inc., hereinafter referred to as Respondent, filed an application with the State of Florida, Department of Environmental Regulation, which would allow it to construct a bridge giving access from a mainland area to an adjacent spoil island known as Ortega Island. The spoil island was created in 1959. This proposed project is found in Duval County Florida. The island is approximately 42 acres in size and is adjacent to the Ortega River in an area roughly two and a half miles from the confluence of the Ortega and St. Johns Rivers. The body of water to be spanned by the proposed bridge is known as the Stockton Canal, a man-made canal. That canal is connected at its north and south ends to the Ortega River. The State of Florida, Department of Environmental Regulation, which will now be referred to as the Department, reviewed the initial application of July, 1980, and a revision of May, 1981. The review was conducted by the Northeast District Office of the Department. A further modification was offered through a revised construction plan which dates from May, 1982. Respondent's Composite Exhibit No. 4 is constituted of the initial applications related to the project design and certain comments made by the Department of Environmental Regulation. Respondent has sought the approval of its permit application based upon the belief that the project involves dredging below the mean high water line and filling above the mean high water line of waters of the state. Consequently, Department approval has been sought pursuant to those Sections 253.123 and 403.087, Florida Statutes, and the related provisions in Chapters 17-3 and 17-4, Florida Administrative Code. In the initial permit application of July, 1980, the applicant had proposed to construct a 20-foot concrete span, eight feet high, which was to be connected to the mainland and Ortega Island by the placement of fill material, thereby building causeways which extended approximately 55 feet into the canal from each end of the shore. This would have entailed the placement of 3,000 cubic yards of fill waterward of the mean high water line and reduced the canal width to 20 feet at the area of the bridge site. The Department did not look with favor upon the elimination of marine habitat by the construction of causeways and the attendant adverse impacts in the hydrographic regime in the Stockton Canal. This is shown in the Department's remarks found in Respondents' Exhibit No. 8 admitted into evidence. To address those concerns, the Respondent employed Dr. Barry Benedict, an expert in the field of hydrographic engineering, who conducted hydrographic studies of the Stockton Canal. These studies are found as part of Respondents' Exhibit No. 6 admitted into evidence. In summary, Dr. Benedict recommended that the bridge span be no less than 48 feet. Pamela Sperling, the hydrographic expert of the Department, reviewed these materials and concurred that a minimum span length of 48 feet would be necessary. This is reflected in a memorandum offered by Ms. Sperling, which is Respondents' Exhibit No. 10 admitted into evidence. The May, 1981, revision of the project calling for 52 foot bridge span is the result of the Benedict study and the remarks of Sperling. That proposal would allow for 39 foot causeways on each end of the bridge and 2,000 cubic yards of fill material waterward of the mean high water line. Notwithstanding the acceptance of the hydrographic improvements related to the new provision, the Department still was concerned about adverse impacts to marine habitat which would occur with the placement of fill on related biological resources. Likewise, the Florida Game and Freshwater Fish Commission, National Marine Fisheries Service, United States Department of Interior, and United States Environmental protection Agency had expressed concern about this destruction. Those comments are found in Respondents' Exhibit Nos. 13 through 16 respectively, as admitted into evidence. In the face of these reservations, the May, 1982, revision was made, which would allow a total span of the waterway, eliminating causeways and fill material below the mean high water line. Following the May, 1982, revision, the Department issued its notice of intent to grant the permit. Notification was made on September 10, 1982, a copy of which may be found as Respondents' Exhibit No. 17 admitted into evidence. The permit application appraisal by the Department was conducted by Tim Deuerling, who is an Environmental Specialist who assesses dredge and fill permit applications. Mr. Deuerling additionally has expertise in the field of biology and water quality analysis related to dredge and fill activities. His appraisal of the project is based upon several visits to the site, and his impressions of the site are outlined in a report of October 30, 1980. A copy is found as Respondents' Exhibit No. 8 admitted into evidence. On April 1, 1983, a further revision was offered to the permit application. The initial aspect of that revision concerned stormwater disposal for a concrete bridge. The remaining aspect of the revision was the suggestion that a timber bridge be considered as an alternative structure. The April 1, 1983, revision formed the basis of the consideration of the project by way of final hearing. The Petitioners protested consideration of the April, 1983, revision contending that the revision was not appropriately reviewed by the agency, in that it constituted a substantial revision in the application process and was not the application which the agency had accepted in indicating its proposal to grant the permit in September, 1982. The hearing was allowed to go forward over the objection of the opponents to the permit, it having been determined by the Hearing Officer that the revisions of April, 1983, were not so remarkable that they would require a new permit application or further agency study and review prior to the formulation of proposed agency action in deciding to grant or deny the permit request. Further, it was determined that the April, 1983, revision could be considered without the necessity of additional notification of the issues to be considered in the hearing, there being an adequate opportunity for the applicant to develop the record in favor of those modifications and to allow the Department, Petitioners, and Intervenor to form the needed record response. In the dispute as considered at the final hearing, the petitioners and Intervenor contended that the project should not be allowed because it fails to comply with requisite provisions of 253 and 403, Florida Statutes, and the associated rules related to those statutes. In addition to the protest which has been made by those individuals having party status in this instance, there have been other written statements in opposition which may be found as Respondents' Exhibit No. 18 admitted into evidence, a composite exhibit. Those objections by Petitioners and Intervenor are more specifically detailed and discussed in further sections of this Recommended Order. Under the April 1, 1983, proposal, the concrete bridge is composed of a system of hollow cord deck members supported by concrete piles. There are six pile bents and four of those are within the waterway. The spacing between the piles is 24 feet minimum horizontal clearance, with the bottom of the bridge deck being eight feet above the water at the lowest clearance point. The bridge span is 130 feet, to allow the bridge construction to be completed without the placement of fill below the line of mean high water on either end of the bridge. The bridge approaches under the new proposal are constituted of asphaltic concrete roadways supported by fill material and that fill material is separated from the waterway by the use of sheet pilings. Water drainage from the deck surface of the concrete bridge would flow through a collection system, which is part of the bridge structure. The water, which is released from the bridge surface on the mainland side, would be transported to a stilling and percolation basin also serving a residential area of approximately 42 acres. The water from the 42 acres now flows through a grass swale before entering the canal. The project design would accommodate the 42 acre flow and the .35 acres from the bridge. The water from the 42 acre plot and the bridge project flows into the Stockton Canal after receiving some water treatment in the transport process. The volume of the percolation basin is 620 cubic feet. The establishment of this percolation basin will not adversely affect the adjacent properties in the 42 acre tract by prohibiting the flow patterns from that property or sufficiently change the quality of stormwater treatment from the adjacent property to cause adverse impacts on receiving waters in the Stockton Canal. Runoff from the bridge to the island side of the proposed concrete structure would flow through a swale system for treatment before entering the Stockton Canal. The treatment afforded all runoff is by surface flow and vertical percolation. The alternative bridge structure, i.e., the wooden bridge, would span the Stockton Canal and not require filling either waterward or landward of the mean high water line. Unlike the concrete bridge, the deck surface is pervious. Consequently, water may be introduced directly into the canal from the deck surface. The stormwater runoff on the bridge approach on the mainland side would be collected and discharged through the existing grass swale and from there, into the canal. Drainage from the bridge surface and approach on the island side would be through a swale system and from there into the canal. The Stockton Canal is constituted of Class III waters within the meaning of Chapter 17, Florida Administrative Code. Consequently, the Respondent is required to give reasonable assurances that the project would not violate water quality criteria or standards related to Class III waters. In this instance, construction and utilization of the concrete bridge, with its attendant approaches, would not degrade the water below those standards, that is to say, the necessary reasonable assurances have been given that the short and long-term effects of the project will not result in violations of Class III water quality standards. The latest concrete modification allows for the removal and treatment of the stormwater effluent which flows from the bridge surface and approaches. No fill is to be placed in the waters of the state below the mean high water line. (The mean high water line was established in the course of the hearing through the testimony and the evidence presented.) Fill will be contained by sheet pile. Turbidity screens will be used while the construction is underway to confine turbidity problems in the placement of the bridge pilings. Siltation barriers are to be employed while removing the existing root overhang on the island side of the bridge to avoid the deposition of those materials in the waters of the state. The timber bridge allows for water to flow directly from the surface into the canal but the contaminants introduced into the canal would not exceed standards. According to Harvey C. Gray, Jr., State of Florida, Department of Transportation, an expert in chemical water quality analysis, the expected constituents from the stormwater runoff from the bridge decks either directly or indirectly introduced into the canal would not violate water quality criteria parameters. Nor would leaching from the wooden bridge pilings present a violation of water quality criteria. These opinions are accepted. A study mentioned by Harvey Gray has established that the contaminants from the deck surface are usually contained in the first half inch of rainfall and the treatment arrangements for stormwater runoff are designed to accommodate that first half inch. The source of pollution on the deck is vehicular traffic and vehicular fallout. Moreover the transport of the stormwater over the land surface attenuates the concentration of pollutants. Don Clay Bayley is Chief of the Environmental Services Division, City of Jacksonville. Testimony given by the witness Bayley, who has some experience in testing for leaching of contaminants from wood pilings, pointed out the toxicity of those materials. He acknowledges, however, that treatment substances can be used which are not toxic. The applicant should use these substances if the timber bridge is employed. Bayley alluded to studies done by the Department of Transportation for the Buckman Bridge, which is a bridge serving Interstate 95, related to the fact that violations of lead, zinc, and copper standards of water quality have been found in that area. These observations did not take into account an acceptable mixing zone where the contaminants are to be introduced into the St. Johns River under the bridge. More importantly, the Buckman Bridge is very different in terms of the amount of vehicle traffic, in that there are an extremely high number of vehicles using that bridge, as contrasted with the limited use of the subject bridge. Therefore, Bayley's concerns are not well- founded. Otherwise, the timber bridge offers the same quality of protection as the concrete bridge and reasonable assurances have been given that the short and long-term affects of the project will not violate water quality standards for Class III waters. Nonetheless, the higher quality of water treatment would be received in the concrete bridge alternative. In support of the application, sufficient water quality sampling has been done to establish reasonable assurances that water quality standards shall not be exceeded. Moreover, nutrient loading is not expected as a result of the bridge construction. In addition, witnesses Deuerling, Tyler and Craft, employees of the Department and experts in water quality analysis, do not believe water quality criteria will be exceeded by this construction, and their opinion is accepted. In summary, the necessary reasonable assurances have been given that water quality criteria related to Class III waters, as found in Rule 17-3.121, Florida Administrative Code, will not be exceeded and that the project will not promote undue nutrient loading as contemplated by Rule 17-3.011(11), Florida Administrative Code. Peter Hallock, project engineer, established in his testimony that either alternative in the bridge design would not adversely affect drainage related to adjoining properties on the landside of the bridge. The concerns expressed by Dr. Arlynn Quinton White, Jr., Department of Biology and Marine Science, Jacksonville University, of the possibility of stormwater impacts, with particular emphasis on hydrocarbon concentrations, are not accepted. The runoff is not found to be violative of water quality standards in the receiving waters. These findings take into account the expected maximum number of average daily trips, 460. Given the number of average daily trips, the stormwater contaminants, which are untreated, would not violate DER water quality standards. The number of average daily trips on the proposed bridge is much less than the 4,000 trips over the study bridge referenced by the witness Gray and generally discussed before. That study did not show violations of the criteria for Class III waters, which is the classification for the Stockton Canal. The location of the study, while not in Duval County, dealt with sufficiently similar circumstances to allow the acceptance of those findings. Testimony was presented by Dr. Barry Benedict, author of the aforementioned hydrographic study. His testimony concerned an analysis of the flow patterns at present and following the installation of the bridge. The testimony was based upon results of the initial investigation or study, found as Respondents' Exhibit No. 6 admitted into evidence and the update of April 18, 1983, found as Respondents' Exhibit No. 7 admitted into evidence. Dr. Benedict's analysis utilized a liberal estimate of the impact of the bridge on the canal system on the question of flow. His findings were to the effect that the bridge would cause minimal change in the flow velocity of the water and in sedimentation in the overall canal. He did not feel that the installation of the bridge would unduly hamper the flushing qualities in the canal or result in a flood hazard to adjacent properties. This was his opinion whether the concrete alternative or timber bridge were elected. Benedict felt that a maximum nine percent difference in flow would occur bringing the flushing time within the canal system from 3 hours and 30 minutes to approximately 3 hours and 45 minutes. This, in Benedict's mind, is not a substantial hydrographic alteration. In summary, Benedict felt that the installation of the bridge would have minimal impact in terms of hydrographics. Benedict's depiction of these matters is accepted as being correct. The Department of Environmental Regulation's hydrographic engineer and specialist in hydrodynamics and water quality analysis concurred with Dr. Benedict on the hydrographic effects of the installation of the bridge. Her concurrence is based upon a review of the Respondents' Exhibit No. 6. Ms. Sperling had also examined the site for the proposed bridge project and made independent calculations that the flow velocity would not be significantly influenced by the installation of the bridge. Ms. Sperling believes that a flushing time which is essentially one half tidal cycle or six hours is acceptable, and she believes that the flushing time in this project after the bridge installation will fall within three and a half to four hours. Sperling also indicated that she did not feel that the bridge project would have adverse effects on the water quality within the canal. The opinions of Sperling, as related herein, are accepted as factually correct. George Robert Register, III, who holds a bachelor's degree in biology and a master's degree in coastal and oceanographic engineering, gave testimony on the hydrographics within the Stockton Canal. Register's opinions were not based upon testing or calculations related to the project such as sediment analysis, studies of tides, or soil borings. He noted the gradual shallowing which has occurred within the canal over a period of years and expressed concern that the change in flow could result in a more rapid shallowing. He alluded to the observations of Frederick W. Brundick, III, a resident of the Stockton Canal, who has seen the shallowing occur over a 20-year period. Register also stated that he feels that the present situation in the Stockton Canal is similar in nature to a problem which occurred in another area of the Greater St. Johns River which is known as Mill Cove. In that instance, dramatic silting has taken place. Register contended that boat traffic helps to suspend the particles of soil and alleviate silting, an influence which will be diminished after bridge construction due to less traffic. Register indicated that the analysis of the hydrographics, which was done by Dr. Benedict, was insufficient and indicated that, in his opinion, a stability test should have been done related to the project area. The stability analysis pertains to whether the water system will continue in its present flow pattern or is on the brink of rapid shallowing. While the observations of Register and Brundick related to the shallowing of the canal system are accepted, Register's opinion that the present system will rapidly deteriorate into a more shallow configuration, as with the case with Mill Cove, is not accepted. Nor is Register's suggestion that a stability test was in order on this occasion found to be correct. The calculations by Dr. Benedict, confirmed by Sperling, are found to be the more accurate depiction of the effects of the installation of the bridge. The placement of the bridge is not expected to be an event which will imbalance the flow patterns in such a fashion that rapid siltation will occur. Based upon Department of Environmental Regulation reports, the types of sediments in the canal subject to water borne transportation are silty. They have low fall velocities, which would make them less likely to increase sedimentation in the canal system due to the installation of the bridge, when compared to other soil types. The sediment materials are very fine and not such that they would readily settle out due to minor reductions in the flow velocity, such as would occur with the construction of the bridge. Although the reduction in flow velocity within the canal system after the bridge build-out is not such that it would cause water quality violations or substantially impede the flow, there will be some increase in siltation. This change in sedimentation or siltation is recognized by the Respondent, in the person of its expert, Dr. Benedict. The fact of this increase in siltation would require channel maintenance within the canal, and no provision has been made in the application for channel maintenance. That maintenance is necessary to prohibit undue shallowing, especially at the location of the bridge. This siltation at the bridge will result based upon the placement of the pilings, which will slow the velocity of water, leading to attachment of marine organisms to the bridge pilings. Consequently, provision should be made for channel maintenance. Likewise, even though the Respondent hopes to eventually have a homeowner's association responsible for bridge maintenance, that issue of the development of the island was not considered in the course of this hearing, making it necessary for someone to maintain the constructed bridge and approaches prior to any future development. That provision had not been made and should be arranged for. Both the channel and bridge maintenance would be an appropriate responsibility for the applicant for permit. The necessity for the bridge and canal to be maintained by the applicant is not such that the Department, pursuant to Rule 17-4.11, Florida Administrative Code, should require proof of financial responsibility or posting of a bond. If the applicant is financially able to construct the bridge, it is determined that the applicant could be expected to be financially able to maintain the bridge and canal. Witnesses of the Petitioners, in particular, the witness Bayley, have expressed concern about the placement of fill material on Ortega Island, in that it is the belief of that witness that the placement of the fill would displace the muck layer which would then be forced into the canal. Witnesses White and Register supported Bayley's opinions reference the muck layer. There is, in fact, a muck underlay on the island, and the placement of the fill soil can be expected to force the transport of some of the muck underlayer. The amount of muck layer to be displaced is not certain; however, by placing the piling barrier at the edge of the canal the muck can be contained. The applicant has made provision for protection against the muck material where the pilings are proposed for installation. Nonetheless, it may be necessary to extend the length of pilings beyond the area of the bridge abutment and approach to the bridge on the island side, to contain this material, and the applicant should make any necessary modification to prohibit the introduction of the highly organic muck material which could cause problems with ph and dissolved oxygen content related to water quality standards. In summary, the applicant has given the necessary reasonable assurances that the muck material will not violate water quality standards in the water, subject to necessary adjustments in the piling design on the island side in the area of the bridge approaches to block the flow of the muck. On the related question of the overall stability of the island, the geomorphologic process evidence shows that the island is becoming more inundated with water. This is borne out by the observations of Mr. Brundick, a 20-year resident in the area of the island, and is more graphically described in the photographs which are Petitioners' Exhibit No. 2 admitted into evidence. His finding is also supported by the observations of Dr. White to the effect that certain vegetational species seen on the island indicated that increased island area was under water. The placement of the bridge approach fill was not shown to be a critical contributor to this condition. Notwithstanding the island's long-term physical change, there was no indication that this condition, per se, when considered in the context of the building of the bridge and the approaches, indicates violation of the permitting statutes or rules of the Department of Environmental Regulation. The development or the construction of the bridge requires the dredging of material in waters of the state. Per Section 253.123, Florida Statutes and Sections 17-4.29, Florida Administrative Code, the Respondent/Applicant needs to address the possible interference with conservation of fish, marine, and wildlife and other natural resources which the project may promote contrary to public interest. Respondent satisfactorily responds to those matters. The biological and ecological studies, which were done by the Department of Environmental Regulation, and reported in Respondents' Exhibits 8 and 9, indicate that the area in the Stockton Canal is not particularly productive in terms of its biological volume and diversity. There is very little litoral vegetation and submerged grasses are scarce. The most diverse area is in the proposed project site which formally was the location of a bridge. The remains of that bridge debris have promoted a more diversified biological community. To protect the species and habitat during and after construction, the applicant is using a full span bridge, which is in keeping with recommendations by various state and federal agencies. The testimony of the expert biologist Tim Deuerling of the Department of Environmental Regulation, was to the effect that the impacts of the project related to biological resources was minimal. Jeremy Craft, of the Department of Environmental Regulation, agrees with Deuerling and indicates that there will be no impact on the resources pertaining to fish, marine, and other natural resources. Moreover, both Deuerling and Craft felt that the placement of the bridge piling would grant an opportunity for increased biological diversity in the Stockton Canal. Jeremy Tyler also indicated that he was of the opinion that the bridge would not negatively impact fish, wildlife, and other natural resources premised upon the fact that no fill was being placed waterward of the mean high water line and no substantial changes in the hydrographics of the canal system. These opinions expressed by Deuerling, Craft, and Tyler are accepted as being correct. The installation of the bridge will not result in the destruction of oyster beds, clam beds, or marine productivity including destruction of marine habitats, grass flats suitable as nursery or feeding grounds for marine life, and establishment of marine soils which could be used for producing plant growth useful for nursing or feeding grounds for marine life or interfere with the natural shoreline processes to an extent that is contrary to the public interest within the meaning of Subsection 253.123(2)(d) Florida Statutes. It was additionally established that the placement of the canal will not interfere with the endangered West Indian Manatee, the area of the canal having insufficient vegetation for the manatee to feed on. Any manatee passing through the area of the canal will not be hindered by the bridge's placement. Additionally, there may be some benefit to the placement of the bridge in that it would tend to slow the boat traffic, decreasing the possibility of injury to the manatee by boat propellers. This was established by testimony of the witness Deuerling. In summary, no showing was made that the project will adversely impact fish, marine, and other natural resources in the area to the extent that it is contrary to the public interest. Benedict and Sperling have established, through their opinion testimony, that the installation of the bridge would not have an adverse impact on the shoaling conditions which are occurring at the north and south entrances to the canal. This testimony is correct. The shoaling conditions will occur with or without the construction of the bridge. Moreover, as established through Benedict's testimony, during a flood stage condition, such as a flood tide five feet above mean high water, the bridge would make no notable contribution, in that it would cause a backup of water only in the range of two to three inches. The bridge, when installed, will reduce boat traffic. Nonetheless, at present, boats are not a primary factor in reducing the amount of siltation in the canal and a further reduction in the contribution which those boats make to reduction of siltation is inconsequential. Any positive contribution by boat traffic in reducing siltation is offset by the negative impact of that traffic on water quality. On the subject of hydrographic changes to be brought about by the installation of the bridge, there will be no substantial alteration or impediment to the flow of water in the Stockton Canal to an extent that it is contrary to the public interest. As briefly alluded to before, there will be some impacts upon navigation in the canal; however, those impacts do not reach the level of becoming a hazard to navigation or a serious impediment to navigation contrary to the public interest. At present, approximately 20 boats may use the canal in a weekend according to the testimony of Fred Brundick. The canal already has a "no wake" zone and the placement of the bridge will not tend to interfere with the speed of boat traffic through the canal. If anything, the placement of the bridge may assist in slowing down boat traffic within the canal for those individuals who tend to disregard the "no wake" zone. The shoaling, which has been spoken to in a prior paragraph, is most severe in the north end where minimum controlling depths of 3.7 feet mean low tide may be found as contrasted with 4.4 feet mean low tide at the south end. Therefore, southern access into the canal is easier for those persons who have residences on the canal and other persons who use the canal, when their boats have deep drafts. Smaller boats will be able to enter the canal from the north and south if the bridge is constructed, in view of the fact that the bridge affords an eight foot clearance. Those boats which would not be able to gain entrance into the canal after the construction of the bridge would be boats which require more than 4.4 feet of draft and greater than eight feet of vertical clearance. H. J. Skelton, a resident of the landside of the north end of the canal, testified in the course of the hearing and indicated that the placement of the bridge would limit the type and size of boat that he might wish to purchase in the future. At present, he does not own a boat or dock at his residence. Witness Brundick also established that he would be precluded from bringing one of his boats to his home because of the placement of the bridge, except at extremely high tide events. That boat is one which is infrequently moored at his home. Raymond Perry Harris, who lives on the canal, has difficulty bringing his boat through the north end at low tide, and he would be unable to utilize the southern entrance at low tide due to the 14 foot clearance necessary for the boat to go under obstacles such as the bridge. He brings this boat to the dock at his home approximately three to four times a month. Although it has been demonstrated that there will be some hindrance to local residents and others due to the placement of the bridge, the only hazard presented by the placement of the bridge concerns boat operators who are not attentive and water-skiers. This latter category of canal users would be utilizing the canal contrary to the "no wake zone, even without the placement of the bridge. Thus, water-skiers and careless boat operators are not the categories of individuals who use the canal and by doing so should cause the rejection of this permit request. On balance, the proposed bridge is not a hazard or impediment to navigation and its restrictions to the utilization of the canal are not contrary to the public interest. The minimal restrictions on navigation are within acceptable limits. The project, in its design, will not require the placement of fill below the line of mean high water. Determination of the mean high water line was made by a registered surveyor and that determination may be found as Respondents' Exhibit No. 5 admitted into evidence. Consequently, no local approval was sought pursuant to Section 253.1245, Florida Statutes (1982). There is no extension to land by the process of the construction of this project. However, there is an area of overhanging vegetation with an underlying undulation/indentation, which by its design causes the vegetation to be slightly above the water at low tide and under water at high tide, with the indentation being configured in a fashion which places the line of mean high water further landward than depicted by the applicant. The locale of these features is at the construction site on the island side. This phenomenon has occurred due to the changes related to erosion. The indentation or cave eroded because of tidal influences and boat traffic, leaving the vegetation mass. The overhang material would be removed, and this process does not involve the extension of land from a point above the line of mean high water into waters of the state. A siltation barrier would be used while this overhang is being cleared, and the sheet piling would be installed at or above the mean high water line, and associated work related to the installation of the pile would be landward of the line of mean high water. The applicant's plans do not show that the piling barrier or bulkhead will follow the configuration of that phenomenon. At present, there is a straight line bulkhead. Nonetheless, the applicant could vary the configuration and prevent the placement of fill in the water. To accommodate this problem from an engineering point of view, the bridge can be lengthened to assure that the bridge spans the entire waterway at the point of the phenomenon and thereby prevent any placement of fill waterward of the line of mean highwater. In addition, the bulkhead can be placed so that it follows the configuration of the undulation. In summary, treatment of the overhang problem will not require the extension of land into waters of the state by the placement of fill below the mean high water line as described in Section 253.1245, Florida Statutes (1982) . Moreover, the removal of the material in the overhang and the placement of the bulkhead to approximate the configuration of the cave and expansion of the bridge span on the island side are not actions which would violate water quality standards of the Department or are contrary to public interest related to conservation of fish, marine wildlife, or other natural resources. Neither will this tend to adversely impact or substantially alter or impede the flow of navigable waters contrary to public interest nor present a navigational hazard or serious impediment to navigation contrary to public interest. There is some indication of concern on the topic of decreased property values for residents on the landside on the proposed bridge. Likewise, testimony was given concerning the opinion of one homeowner that additional traffic would be hazardous to persons living in the present neighborhood adjacent to the canal. Additionally Phillip Fred Baumgardner is a member of the general public and gave testimony to the effect that the installation of the bridge would prohibit certain commercial boats from being able to work the canal. Owen Ganzel, who fishes in the area, expressed concern that the bridge installation would cause a decline in fish population; however, he indicated that lately, the Ortega Island area has improved These concerns are not substantial enough to cause the rejection of this permit application based upon public-interest concerns.
Findings Of Fact On June 21, 1982, DGS issued specifications and contract documents as a basis for competitive bidding on a building construction project entitled "Rough Site Preparation and Grading for a Reception Center and Correctional Institution, Dade Co., Project No. DC-8037/8135," for the State of Florida, Department of Corrections. The specifications and contract documents were prepared by DGS' consulting architect/engineer ("A/E") Paragraph B-10 of the specifications provided that requests for correction or interpretation of the meaning of drawings and specifications or other bidding documents should be in writing, addressed to the A/E, and that all such interpretations and supplemental instructions would be in the form of written addenda to the bidding documents. In addition, subparagraph B-3 of the specifications for the project provided that each ". . . bidder is required to be familiar with all Federal, State and Local laws, ordinances, rules and regulations that in any manner affect the work. Ignorance on the part of the bidder will in no way relieve him from responsibility." Further, subparagraph B- 11 of the specifications provides as follows: Bidders are required, before submitting their proposals, to visit the site of the proposed work and completely familiarize themselves with the nature and extent of the work and any local conditions that may in any manner affect the work to be performed and the equipment, materials and labor required. They are also required to examine carefully the Drawings, Specifications and other Bidding Documents to inform themselves thoroughly regarding any and all conditions and requirements that may in any manner affect the work. By letter of July 6, 1982, Capeletti, as a prospective bidder, called to the attention of the A/E that an existing road near the north boundary of the property on which the project is to be constructed, which was designated on the site location plan drawing as Northwest 41st Street, was not a public road, but was, instead, a private road on private property. In fact, the road depicted as Northwest 41st Street on the plans and specifications is owned by Florida Power and Light Corporation, and has not been dedicated for public use. Capeletti has been granted an exclusive right-of-way by Florida Power and Light Corporation for use of that road. A fence with a gate installed by Capeletti at some time in the past blocks access to the road, and a sign on the gate advises visitors that the roadway is under private ownership. In its letter to the A/E Capeletti inquired whether another access road would be provided to the bidder ultimately awarded the contract. The A/E did not issue a written addendum in response to Capeletti's letter, nor were any prospective bidders notified in writing by the A/E of the absence of a public access road. Both Bergeron and Capeletti submitted bids on the project. Bids were opened on July 14, 1982, and the apparent low bidder was Bergeron, whose bid totaled $1,985,000. The amount of the second lowest bid was $2,390,000, and Capeletti's bid totaled $2,565,000, or $585,000 more than Bergeron's bid. The estimated DGS project budget for this project was established at $2,400,000 prior to the opening of the bids. Bergeron's bid was, therefore, $415,000 below the DGS estimate of the cost to do the project. By letter dated August 19, 1982, DGS gave notice to all bidders of its intent to award the contract to Bergeron. Within 72 hours after receipt of DGS' notice, Capeletti filed a Notice of Protest pursuant to Section 120.53(5), Florida Statutes, and within ten days thereafter filed its Petition for Formal Hearing. Capeletti's petition requested that the contract be awarded to Capeletti, since it was the only bidder having legal access to the project site, or, alternatively, that all bids be rejected and the project rebid. By letter dated September 22, 1982, DGS notified Bergeron and Capeletti that it was rejecting all bids, and further advised them that: We have determined that the specifications contained a mistake of material fact concerning access to the job site. Although there is no public road adjacent to the site and the state did not otherwise have access, the drawings indicated that a public street, Northwest 41st Street, adjoined the site on our north boundary. This was a misleading representation. When access is obtained, it may be at a different location and may affect the amount of the bid. The Department desires to give bidders an equal opportunity to bid on the project with knowledge of the access location after it is obtained. The Department proposes to rebid the project in the near future, combining the rough site preparation and the buildings into a single project, and you will be notified of the date when' specifications will be available. (Emphasis added.) After receipt of the DGS letter of September 22, 1982, Bergeron timely filed a Notice of Protest and its Petition in this cause, protesting the rejection of bids. The Capeletti and Bergeron petitions were consolidated for hearing purposes and for entry of a Recommended Order in this proceeding. Subparagraph B-22 of the specifications, entitled "Rejection of Bids," provides as follows: The Owner reserves the right to reject any and all bids when such rejection is in the interest of the State of Florida, and to reject the proposal of a bidder who the Owner determines is not in a position to perform the Contract. . . At the time bids for the proposed project were invited, opened and rejected, there was no existing public road that contractors could use to gain access to the building site, and there was no private road adjacent to the state-owned property. That situation remained the same at the time of final hearing in this cause on October 25, 1982. DGS apparently knew, however, prior to the filing of Capeletti's protest that there was no public access to the job site. The DGS Chief of Construction for the Bureau of Construction testified that, prior to the filing of the Capeletti protest: . . . it was my understanding that the Department of Corrections had worked with . . . [Dade] county, and the county was going to provide the access and make arrangements for the access along the road designated as the Florida Power and Light private road and the A. J. Capeletti private road and along Northwest 41st Street. As required by the contract documents, Bergeron, prior to submitting its bid, visited the site of the proposed project and observed the aforementioned gate blocking what was delineated on the project drawings as an extension of Northwest 41st Street. Upon further inquiry, Bergeron determined that the roadway depicted on the project drawings as an extension of North West 41st Street adjacent to the north boundary of the project was in fact not publicly dedicated. As a result, Bergeron, in formulating and submitting its bid, contemplated the construction of a temporary haul road of approximately 4,200 feet in order to access the project site. Bergeron apparently factored into its bid amount approximately $155,000 to $160,000 for the cost of building this temporary haul road. The project specifications did not call for the construction of either a temporary or permanent access road into the project area. Bergeron does not have definitive plans for the location of any such temporary haul road, and has indicated only that it would attempt to obtain permission from adjacent private property owners to use their property for that purpose. There is no evidence of record in this proceeding from which it can in any way be concluded that such an arrangement cannot be accomplished. The State of Florida, Department of Corrections, is under a federal court mandate to have the entire facility, of which this contract is merely a part, available for use in the near future. There is, however, no evidence of record from which the exact date of such required availability can be determined, nor any indication that accepting Bergeron's bid would adversely affect that availability. The contract documents provide for delay damages payable to the contractor in case of a delay for reasons other than changes in the work of 10 percent of the contract price per day, divided by the number of days in the contract period. One of the reasons advanced by DGS for rejecting all bids is that failure to do so could result in claims for damages by Bergeron in the event of any delay in obtaining access to the job site. This fear would seem unfounded for two reasons. First, although the contract is a 150-calendar-day contract, the contract time does not begin to run until DGS issues a Notice to Proceed. No contractual provision sets an exact time in which any such notice should issue. Accordingly, it may well be that either DGS or Bergeron can solve any access problem before issuance of the Notice to Proceed. Secondly, Bergeron submitted its bid with full knowledge that there was no public access available, planning instead to furnish its own method of accessing the site. Indeed, Bergeron still contended in this proceeding that it was willing to perform the obligations of this contract at the price it had bid, including providing its own access to the site. Under these circumstances, it would seem improbable that any claim for delay concerning access could be deemed meritorious. The contract drawings show an entrance road running in a north-south direction from the buildings to be constructed on the project site to the northern boundary of the property. The bid drawings show the length of the entrance road to be built on the site as actually 103 feet less than will be necessary to join that access road to any improved roadway which would run east- west to connect with the current termination point of North West 41st Street. There is no showing in the record that this discrepancy in the plans in any way affected the amount of any bid on the project, and, as such, is not considered to be a "material error. DGS has also contended that re-letting the bids on this project may result in a cost-saving by combining with it certain other portions of the overall project. Only one witness was offered by DGS on this point, and his testimony regarding potential cost-savings is not persuasive, primarily because it appears to be based entirely on speculation, and was offered without any record showing of design criteria for any such revised project upon which to base such a conclusion. The testimony in this case reveals that DGS has been involved in siting and designing this project since 1974. DGS has failed to establish that it is in the best interest of the State of Florida, at this late date, to reject a bid that was directly responsive to the bidding documents, in an amount $415,000 below DGS' own project estimate, on the basis of speculation that some apparently hypothetical change in project plans might possibly result in a cost- saving.
Findings Of Fact On December 24, 1986, respondent, Department of Transportation (DOT), gave notice to qualified and interested contracting firms that it was accepting bids from firms interested in providing construction and maintenance services on State Job No. 08150-3412. Such bids were due on or before January 21, 1987. The job description read as follows: At State Bridge Nos. 080025 and 000026 over the Withlacoochee River North of Tampa. Work consists of Furnish and Install Integral Pile Jackets (port. cement grout filled); Remove and Replace Sections of Bridge Deck; Floating Turbidity Barrier; and Incidental Items. Length 0.066 Mile. (B.I. 1144013) Stated in plainer language, the project called for repairs to two bridges on I-75 which span the Withlacoochee River southwest of Ocala in Hernando County. The bidders were also provided with a copy of the specifications and bid form dated November 4, 1986 regarding the contract. In response to this offer, petitioner, CSA Marine Services, Inc. (CSAMS), a contractor with offices at 759 Parkway Street, Jupiter, Florida, filed a bid proposal by the established deadline. Its bid totalled $123,347.59. Also filing a bid proposal was Seig and Ambachtsheer, Inc. (SAI), a contractor in Orange City, Florida. Its bid price was $137,209.50. The bid form itself was prepared by DOT and merely required the contractor to fill in the blanks where appropriate. The first two columns were labeled "item number" and "approximate quantities" and were already completed by DOT. For those items having a quantity of only one, the words "lump sum were written in the second column. Where quantities exceeded one, they were expressed in such terms as linear feet, cubic yards and pounds together with the approximate numerical quantities. The third column was labeled "item description and unit or lump price (written in words)." The fourth column read "unit price (in figures)" and required the bidder to indicate the unit price of each line item in figures. The fifth or final column was labeled "amounts" and required the bidder to reflect the lump sum price of each line item in figures. Columns three through five were filled in by CSAMS where necessary. The total price of the bid was to be listed on a bid blank which was attached to the bid form. On its face, the third column on the form offered petitioner the option of either using a unit or lump sum price. In addition, section 2-5.1 of the Standard Specifications for Road and Bridge Construction, 1986 Edition, which governs the awarding of contracts and has been incorporated as a part of the bid documents, provides as follows: Proposals shall be submitted on the form described in 2-2. Unit or lump sum prices for all bid items shall be shown in words and figures, and all extensions shall be carried out. Notwithstanding the form and instructions, according to a DOT representative, a lump sum price may be used only when the quantity in column two is one item. If more than one item is reflected in column two, then DOT expects a contractor to use the unit price. However, there is no written rule, instruction or provision in the specifications that sets forth this requirement. CSAMS properly opted to use lump sum price under column three on at least two line items even though the quantities exceeded one. Of particular interest was line item 8400-3-4 which, according to column two, required 20.800 cubic yards of concrete for a "superstructure." Relying upon the optional language on the form, petitioner wrote the words seven thousand, one hundred, fifty five dollars and 00/100 cents" in column three (which was a lump sum price), and a unit price of $344.00 in column four. It then used the figure of $7,155 in the final column of that item, which is the approximate sum of $344 times the quantity (20.800). Because of the volume of bid lettings each month, DOT uses a computer to total the numbers in each line item for each bid. If the amount in column five does not agree with the figures in columns three and four, the computer flags the item, and a manual review of the line item is made. While reviewing line item 8400-3-4 of petitioner's bid form, the computer found the numbers did not agree. More specifically, when 20.800 in column two was multiplied times $344.00 in column four, it equalled $7,155.20 and not $7,155.00 as reflected in column five of petitioner's bid form. This twenty-cent disagreement arose because petitioner had rounded off the unit price from $343.99038 to $344.00 in column four. The disagreement prompted a manual review of petitioner's bid form and a recalculation of the line item. On January 30, 1987 DOT bureau chief J. Ted Barefield prepared a letter to CSAMS styled "Notice of Switch in Apparent Low Bidder" indicating in part: Due to mathematical error(s) on the bid of CSA Marine Services, Inc. and Continental Shelf Associates, Inc., the apparent low bidder, whose bid amount was $123,347.59 is now $265,016.59. Therefore, the apparent low bidder is Seig & Ambachtsheer, Inc. The change in amount was the result of DOT increasing the unit price in column four from $344 to $7,155 (to agree with column three) and multiplying the quantity (20.800) times the sum specified in words in column three ($7,155) to arrive at a total in column five of $148,824. This caused an increase of $141,669 over the original bid price. In making the above change, DOT relied on Section 3-1 of the 1986 Edition of the Standard Specifications for Road and Bridge Construction. Section 3-1 provides in relevant part as follows: In the event of any discrepancy in the three entries for the price for any item, the unit price as shown in words shall govern unless the extension and the unit price shown in figures are in agreement with each other, in which case they shall govern over the unit price shown in words. (Emphasis added) Here, because of the twenty-cent discrepancy in the entries for line item 8400-3-4, DOT used the "unit price as shown in words" in column three to recalculate the item since the extension ($7,155.00) and the unit price shown in figures ($344.00)" did not agree. In doing so, DOT did not first evaluate the price written in words to see if it was a lump sum or unit price. After receiving the above letter, CSAMS and DOT representatives met in early February 1987 to discuss the CSAMS proposal. It was represented to CSAMS that it should have used a unit price in words in column three rather than a lump sum price. Petitioner was also provided with a copy of a letter previously sent to it on September 6, 1985 by DOT which noted the following irregularity on a bid: "Unit prices as written in words and figures do not agree (Item 8457- 70)." However, the letter did not contain explicit advice as to DOT's unwritten policy. On February 5, 1987 Barefield wrote a second letter to CSAMS indicating that there were several discrepancies in its bid proposal. These included: (a) the name on the cover sheet (CSAMS and Continental Shelf Associates, Inc.) did not agree with the name (CSAMS) in other parts of the bid, (b) unit prices as written in words and figures did not agree, (c) an incomplete affidavit was filed, and (d) an incorrect MBE Certification and incomplete Utilization Sheets were submitted. The latter two errors were related to the discrepancy in the names. However, the letter stated that "no further action is requested by you at this time," and that the letter was to serve as a reminder that in the future the irregularities could cause petitioner's bid to be rejected. Petitioner's bid was accepted as being appropriate but with the substantially higher bid price of $265,016.59. The error made by CSAMS is a common one. Indeed, it was stated the same mistake is made by contractors on "several bids during each letting." Even so, DOT has not considered providing some special instruction or rule to clarify this matter.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that petitioner be awarded the contract on State Job No. 08150- 3412. DONE AND ORDERED this 22nd day of April, 1987, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 22nd day of April, 1987.
