The Issue The Department of Environmental Regulation issued a Reguest for Statement of Qualification for Petroleum Site Cleanup Services, Solicitation #9111C. Attachment F to the solicitation sought information related to utilization of minority business enterprises as subcontractors. Points were available for said utilization. The Department awarded zero points to parties which failed to include the three pages of the attachment in the responses to the solicitation. The issue in this case is whether the Department acted in accordance with law in awarding zero points for failure to submit all three pages of Attachment F.
Findings Of Fact On March 1, 1991, The Department of Environmental Regulation (DER) issued a Request for Statement of Qualifications (RFSOQ) for Petroleum Contamination Site Cleanup Services, Solicitation #9111C. As stated in the RFSOQ, the DER's objective is to enter into approximately ten contracts for petroleum cleanup services with contractors most qualified to perform the services. It is in the best interests of the state and the DER to enter into such contracts with the most qualified contractors available. Selected firms will be placed under contract with the DER to respond to task assignments. There is no work guaranteed to any contractor as a result of being selected and placed under contract. The cover sheet to the DER Solicitation #9111C identifies Attachment B as "General Instructions", Attachment C as "Instructions for Preparation of an SOQ", Attachment F as "Minority Business Certificate" and Attachment N as an "SOQ Checklist." In the RFSOQ, the DER specifically reserved the right to waive minor irregularities. The general instructions set forth at Attachment B provide, that the DER "may waive minor informalities or irregularities in the SOQs received where such are merely a matter of form and not substance, and the corrections of which are not prejudicial to other contractors." The DER is not required to waive all minor irregularities. The ability to waive such defects is within the jurisdiction of the agency. The evidence establishes that the DER applied such discretion consistently. There is no evidence that, at any time prior to the SOQ opening, did the Petitioner or Intervenors seek additional information from the DER regarding the agency's discretion to waive minor irregularities. Attachment C provides that "ANY AND ALL INFORMATION SUBMITTED BY A CONTRACTOR IN VARIANCE WITH THESE INSTRUCTIONS WILL NOT BE REVIEWED OR EVALUATED (e.g. pages beyond the 20-page SOQ limit will not be reviewed) or may result in the response being deemed non-responsive and rejected as noted." The purpose of the statement was to discourage responders from submitting information beyond that required by the RFSOQ, in order to provide a common basis for the evaluation of all SOQs submitted. The provision also provided the DER with the ability to reject an SOQ which failed to substantially comply with the agency's solicitation. Attachment C states that an SOQ shall consist of three parts, a one- page transmittal letter, a 20-page SOQ, and "other required information". According to Attachment C, the SOQ was to contain an introduction, a section on the company's background, a statement of experience and knowledge related to the qualifications required by the RFSOQ, a description of project organization and management appropriate to the tasks assigned, a list of personnel responsible for completion of assigned task, a list of "a minimum of ten separate and verifiable former clients other than the FDER" and related information. Work performed for the DER was to be set forth separately in addition to the ten non-DER clients. "Other required information" included minority business utilization information. Attachment C provides as follows: Contractors submitting SOQs under this solicitation must identify intended minority subcontractors and estimated percentage of total contract amount to be awarded to minority firms on Attachment F of this Request for Statement of Qualifications. Use of any document other that Attachment F shall result in disallowance of any credit for use of minority subcontractors. (emphasis supplied.) Evaluation points were available on a scaled basis to contractors based upon their commitment to utilization of minority businesses enterprises in their SOQs. Attachment B provides that "Minority Business Utilization will be evaluated. provided that the responder complies with the reporting requirements contained in Attachment F...." (emphasis supplied.) Attachment F, page 1 of 3, provides as follows: Directions: Each contractor and/or subcontractor which meets the definition of a certified small minority business, as described below, shall submit an originally signed copy of page 1 of this Attachment in the response package to this solicitation. If more than one minority business is to be used, the prime contractor shall copy this page and have each minority business complete that copy as though it were an original. A prime contractor which intends to utilize subcontractors meeting the definition of small minority business is responsible for completing page 2 of this Attachment. A prime contractor which meets the definition of a small minority business is responsible for completing page 3 of this Attachment. If a particular page of this Attachment is not applicable, the prime contractor shall so indicate on that page and include the page as part of the response package. At a minimum, the entire three page Attachment F shall be submitted in the response package. Failure to submit-- this Attachment in the response package shall result in the responder receiving a score of zero (0) for minority business utilization. (emphasis supplied.) Attachment N, the "SOQ checklist," provides a list of items which are to be "properly completed, signed and enclosed" in order to "ensure that your SOQ is responsive to FDER Solicitation No. 9111C...." Item 3.b. of Attachment N reads: "Minority Business Utilization Form - if applicable (Attachment F)". As stated in Attachment B to the RFSOQ, on March 13, 1991, a mandatory pre-bid meeting was held in Tallahassee, Florida, at the DER's offices for all contractors wishing to submit a Statement of Qualifications (SOQ). Failure to attend the meeting would have resulted in rejection of SOQs submitted by non- attending contractors. The Petitioner and Intervenors were represented at the pre-bid meeting. The meeting provided an opportunity during the solicitation process to have technical, legal or administrative questions answered. Accordingly, potential responders are expected to have read the complete RFSOQ prior to the meeting. At the pre-bid meeting, the DER did not review every part of the solicitation, but invited questions from participants. The DER official conducting the meeting stated that "any and all information submitted by a contractor in variance with these instructions will not be reviewed or evaluated," however, the other directions provided in the RFSOQ were otherwise reviewed only upon request. Although there was a specific discussion of the requirements for reporting proposed minority business utilization, there were no questions asked with regard to the requirements for completion of Attachment F. There were no questions asked regarding the DER's right to waive irregularities, or whether the failure to submit Attachment F in accordance with the directions would be regarded by the agency as a minor irregularity. Potential responders also had an opportunity to submit written questions prior to a time certain. There is no evidence that questions were raised related to the requirements of Attachment F or to the DER's application of it's discretionary authority to waive minor irregularities. On March 22, 1991, the DER issued an addendum, not material to this case, to the Request for SOQs. The addendum was sent by certified mail to each contractor represented at the March 13, 1991 meeting. On March 27, 1991, a second addendum was sent to each contractor. The addendum, among other things, changed the date for submission of an SOQ from April 1, 1991 to April 15, 1991 at 2:00 P.M. On April 15, 1991, SOQs were submitted by the Petitioner and Intervenors in this case. The bids were opened at 2:00 P.M. or shortly thereafter, and subsequently evaluated and scored by DER personnel. In some categories, points were awarded on a weighted basis, which provided a relative ranking of responders. For example, the prime contractor with the highest minority business enterprise subcontractor utilization received 13 points, with lesser ranked contractors receiving fewer points. On June 3, 1991, at 10:05 A.M. bid tabulation results were posted in the DER's contract office. The Petitioner and Intervenors in this case submitted responsive SOQ's to DER solicitation #9111C. The result of the DER's evaluation was the development of a short list of contractors permitted to make oral presentations to agency officials after which the DER will initiate contract discussions with approximately ten contractors. The SOQs were reviewed by DER officials who initially identified information submitted which did not comply with the requirements of the RFSOQ. Irregularities were identified and discussed with DER legal counsel to determine the materiality of the irregularity and to ascertain the appropriate treatment of the defects. The DER officials did not disclose the identity of the responder during the discussions, although the person identifying the defect was aware of the related responder. However, there is no evidence that the three DER officials were aware of an individual non-complying contractor's identity, or that the decision to waive such irregularities was based upon the identity of the participants. The DER determined that, in order to be equitable to all participants, it would not waive irregularities where the directions were clear and the consequences for noncompliance were specifically set forth. If the solicitation were less clear, or the consequence of noncompliance with the requirement was not specifically identified, the Department attempted to be more lenient regarding the waiver of such irregularities. Where the DER waived irregularities, such waivers were awarded on a consistent basis without regard to the individual responders involved. Information which was not to be reviewed or evaluated was concealed by either covering the information with white paper, or stapling excess pages together. The DER waived several types of minor irregularities in the SOQs received for Solicitation #9111C. Some contractors submitted transmittal letters consisting of multiple pages rather than the one page letter specified in the RFSOQ. The transmittal letter received no evaluation points. The DER stapled multiple page letters together and considered only information contained on the first page. Therefore, information submitted at variance with the one- page limit was not reviewed or evaluated. The DER did not waive the failure to attach a transmittal letter. DER waived some irregularities related to subcontractor letters. Multiple page letters were stapled together and only page one information was reviewed. The DER decision to waive such defects was based upon the fact that such subcontractors were less familiar with the DER's submission requirements than were the prime contractors, that such letters were submitted by the subcontractors, that it was unfair to penalize the prime contractors for the minor irregularities of the subcontractor letters, and that the tasks to be performed by subcontractors were generally not critical to the successful completion of the prime contractor's assigned responsibilities. There was sufficient information to permit the DER to conclude that the subcontractor and prime contractor were committed to the project. There is no evidence that the identities of the subcontractors was considered in determining whether such defects should be waived. The DER waived other irregularities related to subcontractor letters, including the failure of a subcontractor to sign the letter. There was no specific requirement that the subcontractor sign the letter. However, the DER did not waive the failure to submit subcontractor letters. In instances where no letters were submitted, the DER awarded zero points and references to the subcontractor in the SOQ were deleted. The DER's actions related to subcontractor letters was reasonable and appropriate. Another irregularity waived by the DER was the failure to supply a minimum of ten separate and verifiable former clients other than the DER, with work performed for the DER set forth separately. The DER did not waive the failure to submit ten references, however, in some cases, not all ten references were acceptable. Attachment C does not state that the failure to submit ten acceptable references shall result in an award of zero points. In such instances, the DER reduced the number of points available to reflect the percentage of acceptable references provided. Therefore, information submitted at variance with the requirements, such as unacceptable references, was not evaluated. The DER acted reasonably and consistently with the provisions set forth in the RFSOQ. The DER requested that responders identify three "deliverables" required through an ongoing contract which had been effective within the past year. The DER did not consider deliverables related to contracts which had not been effective within the past year. The DER checked the references and awarded no points for unacceptable references. Several SOQ's did not appropriately identify key personnel as required. The DER did not consider information which was not reported as required by the RFSOQ. Where minor irregularities were waived, the waiver was applied consistently to all responders. The DER did not waive the failure of any responder to submit the three pages of Attachment F, as clearly required by the directions to the attachment. All parties which failed to submit all three pages of the attachment received a score of zero. There is no evidence that the DER, at any time, indicated that the directions set forth on Attachment F were optional. Approximately 20 of 45 of contractors submitting SOQs failed to include all three pages of the MBE utilization form, Attachment F to the Request for SOQs. Most failed to include page three of the attachment. The Petitioner, as well as Intervenors ERM-South, ITC and Westinghouse, were included in the 20 responders which failed to submit all three pages of Attachment F. As provided in the directions to Attachment F, failure to include all three pages of the attachment resulted in a score of zero points for MBE utilization. The DER could have made certain assumptions about the applicability of Attachment F to specific responders to the solicitation. However, given that the directions were clear and the penalty for not complying with the directions was equally clear, the DER did not waive the failure to submit all three pages of the attachment as part of the SOQs. The evidence is insufficient to establish that the DER's action was outside the agency's discretion or the requirements of law. Extensive testimony was offered in support of the assertion that the directions related to reporting of minority business utilization were confusing and ambiguous. However, the directions to Attachment F are clear and provide that, "[a]t a minimum, the entire three page Attachment F shall be submitted in the response package. Failure to submit this Attachment in the response package shall result in the responder receiving a score of zero (0) for minority business utilization." There is no credible evidence to establish that such directions are confusing or ambiguous. The instructions to the RFSOQ consistently refer to Attachment F as being the only acceptable means of reporting minority business utilization information. Attachment F consists of three pages, with the "Directions" for completing and submitting the attachment set forth at page one, paragraph one. The Petitioner and Intervenors timely filed SOQ's and are substantially affected by the DER's determination that responders failing to submit all three pages of Attachment F were awarded zero points for minority business utilization. There is no evidence that the Petitioner or Intervenors are unable to perform the tasks identified in the RFSOQ.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Environmental Regulation enter a Final Order dismissing the petition of Metcalf & Eddy, Inc., (Case No. 91-4318B1D), as well as Cases No. 91- 43I6BID and 91-4317B1D, as set forth in the preliminary statement to this Recommended Order. DONE and RECOMMENDED this 26th day of September, 1991, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM 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 26th day of September, 1991. APPENDIX CASE NO. 90-4316B1D, 90-4317B1D, and 90-4318B1D The following constitute rulings on proposed findings of facts submitted by the parties. Petitioner Metcalf & Eddy, Inc. The proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 4. Rejected as to the implication that DER had no right to waive minor irregularities, contrary to the evidence. 12, 16, 19. Rejected, unnecessary. 20. Rejected. Such additional points appear to have been awarded to M&E in violation of Section 120.53(5)(c), Florida Statutes. 24-25. Rejected. Although the specific waivers are factually correct, the implication of the proposed finding is contrary to the weight of the evidence which establishes that the DER waives such irregularities, even though the instructions were clear, where the consequences for failing to comply with each specific instruction were unclear. There was no penalty set forth at the requirement that a document be signed or not exceed one page in length. The evidence establishes that the DER's actions were reasonable, logical, and within the authority of the agency. 29-32. Rejected. Contrary to the clear "Directions" of Attachment F, which state that "[a]t a minimum, the entire three page Attachment F shall be submitted in the response package. Failure to submit this Attachment in the response package shall result in the responder receiving a score of zero (0) for minority business utilization." Responders were referred to Attachment F by the instructions cited in the proposed finding. 33-34, 36-38, Rejected, irrelevant. 39. Rejected, immaterial. The fact the DER could have examined the information submitted by M&E and ascertained the information which would have been set forth in the complete attachment is irrelevant. The agency is under no obligation to review the information submitted for the purpose of determining a responders' minority business status. Such information is to be provided in the three pages of the completed attachment. 40-41 Rejected. A logical reading of the checklist reference to Attachment F would be that, if the attachment were applicable, the attachment should be included. The clear and specific directions to Attachment F require the submission of the three page package to receive points. 42-43. Rejected, irrelevant. 44. Rejected. The failure to submit all three pages of Attachment F resulted in zero points, as provided in the directions to the attachment. The DER policy related to waiver of irregularities does not include the waiver of irregularities where the instructions are clear, the penalty for noncompliance is specific, and a responder fails to comply. The policy is reasonable and was applied consistently. 47. Rejected, contrary to the evidence. It appears that M&E's assertion that it would be included in the "short list" requires addition of points awarded by the DER in violation of Section 120.53(5)(c), Florida Statutes. 49-50. Rejected. While "instructions in a competitive bidding solicitation can be rendered ambiguous by their location," in this case, the instructions contained in the RFSOQ referred readers to Attachment F for the reporting of minority business utilization information. Attachment F's directions are not ambiguous or confusing. 51-53. Rejected, immaterial. This proposed finding is also contrary to the suggestion that the instructions were unclear, and indicates, not that the instructions were unclear, but that the M&E representative did not read the RFSOQ. It is not possible to find that a careful and intelligent reader of the directions to Attachment F could misunderstand the meaning of "[a]t a minimum, the entire three page Attachment F shall be submitted in the response package. Failure to submit this Attachment in the response package shall result in the responder receiving a score of zero (0) for minority business utilization." 54-61. Rejected, immaterial. The fact that a substantial number of responders failed to comply with the clear directions of Attachment F does not establish that the directions are confusing. The instructions to the RFSOQ referred readers to Attachment F for the reporting of minority business utilization information. The first paragraph of Attachment F is entitled and contains "Directions" which are clearly set forth. There is nothing at all ambiguous about the requirement that "[a]t a minimum, the entire three page Attachment F shall be submitted in the response package. Failure to submit this Attachment in the response package shall result in the responder receiving a score of zero (0) for minority business utilization." 62-65. Rejected, irrelevant. There is no requirement that the DER waive all irregularities. Such irregularities may be waived at the Department's discretion. The DER chose not to waive irregularities where the requirements, and the penalties for failure to comply with said requirements, were clear. The DER applied this policy appropriately and consistently. There was no appearance of favoritism when the agency's policy is fairly and consistently applied. Rejected, irrelevant. The DER expects potential responders to have read the RFSOQ prior to the pre-bid meeting. The purpose of the meeting is to answer questions and provide clarifying information. The fact that no questions were asked regarding the requirement to submit all three pages of Attachment F indicates that participants either clearly understood the requirement or had not read the RFSOQ prior to the only mandatory opportunity to obtain clarification. In any event, the DER is not obligated to read every sentence of the RFSOQ aloud at a pre-bid meeting in order to make certain that responders who fail to read the document will submit responsive SOQs. Rejected, cumulative. 68-69. Rejected, immaterial, unnecessary. Respondent Department of Environmental Regulation The proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 2. Rejected, unnecessary. 6. Rejected, unnecessary. 20. Rejected, unnecessary. 23. Rejected as to the implication that Attachment C, Page 1, indicated the DER could not waive any irregularities. Cited language states that information submitted in variance with instructions would not be reviewed or evaluated. The evidence establishes that information submitted in variance with the instructions was not reviewed or evaluated, but was disregarded. 28. Rejected. It is not clear what is meant by this proposed finding. 37-39. Rejected, irrelevant, unnecessary. The directions to Attachment F clearly state that all three pages must be submitted or zero points will be awarded. 41. Rejected, unnecessary. The directions to Attachment F clearly state that all three pages must be submitted or zero points will be awarded. Testimony as to the ambiguity of such directions is not credible. 42-43. Rejected, unnecessary. The directions to Attachment F clearly state that all three pages must be submitted or zero points will be awarded. Testimony as to the ambiguity of such directions is not credible, especially given M&E/PIECO's correct submission in response to similar requirements of RFSOQ #9003C. Rejected, unnecessary. The directions to Attachment F clearly state that all three pages must be submitted or zero points will be awarded. Testimony as to the ambiguity of such directions is not credible. The fact that the cited witness understood the directive and failed to comply due to oversight does not suggest that the directive was unclear. Rejected, unnecessary. The directions to Attachment F clearly state that all three pages must be submitted or zero points will be awarded. The reason for the cited witnesses failure to comply is unclear. Rejected, cumulative. 48. Rejected, unnecessary. 50-51. Rejected, immaterial. The issue in this case is not whether to goals of the minority business utilization program are met, but whether the DER acted inappropriately in reviewing SOQs submitted in response to the DER RFSOQ #9111C. 52-53. Rejected, unnecessary. 54-56. Rejected, unnecessary, cumulative. Intervenor ERM-South The proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 2. Rejected, cumulative. 14-19. Rejected, irrelevant, unnecessary. See preliminary statement. 21. Last sentence rejected, contrary to the greater weight of the evidence which establishes that the DER applied the language of the RFSOQ in a reasonable way, and that material information submitted in variance with the instructions was not reviewed or evaluated. 32-39, 41. Rejected, immaterial. The issue is whether the failure to follow the clear directions of Attachment F should result, as the directions provide, in zero points being awarded. The fact the DER could have examined the information submitted by ERM-South and ascertained the information which would have been set forth in the complete attachment is irrelevant. The agency is under no obligation to review the information submitted for the purpose of determining a responders' minority business status. Such information is to be provided in the three pages of the completed attachment. 40. Rejected, contrary to the evidence. There is no evidence that the omission of Attachment F, page three, is the sole basis for exclusion of a contractor from the short list. The short list was determined by ranking scores awarded. As stated in the directions to Attachment F, the result of noncompliance with said directions was an award of zero points for minority business utilization. 42-46. Rejected, cumulative, contrary to the greater weight of the evidence which establishes that the DER's action in reviewing the submitted Attachment F was reasonable, logical, and was applied in a consistent manner. As to whether the DER should have contacted other agencies to determine MBE status, the agency is under no obligation to do so. 47-49. Rejected, contrary to the clear directions of Attachment F, which state that "[a]t a minimum, the entire three page Attachment F shall be submitted in the response package. Failure to submit this Attachment in the response package shall result in the responder receiving a score of zero (0) for minority business utilization." It is simply not possible to find, as suggested in the proposed finding, that such language cannot be relied upon to put contractors on notice that the failure to submit the three pages would result in zero points. Rejected, contrary to the evidence and to the clear directions set forth at Attachment F. Rejected, irrelevant. 52-54. Rejected, contrary to the evidence and to the clear directions set forth at Attachment F. 55-57. Rejected, irrelevant. 59-64. Rejected, irrelevant, unnecessary. See preliminary statement. Intervenor ITC The proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: Proposed findings of fact #7, #10 and #14-16 relate to evidence introduced at hearing by ITC to support it's position that it had been excluded from the "short list" due to DER's clerical error. As stated in the preliminary statement, ITC failed to timely file a notice of protest subsequent to the posting of the bid tabulation results challenging the DER's clerical error. Accordingly, this Recommended Order does not set forth Findings of Fact related to the clerical error due to ITC's failure to timely file a written notice of protest as required by Section 120.53(5)(b), Florida Statutes. 12. Rejected. The M&E formal written protest does not allege that the DER had improperly drawn the line for the "short list." 18-20. Rejected. Although likely correct, the proposed findings are irrelevant to the issue in this case. Rejected. Such additional points awarded to M&E by the DER appear to have been awarded contrary to Section 120.53(5)(c), Florida Statutes. Rejected, cumulative. ITC had an opportunity to timely file a written notice of protest subsequent to the bid tabulation posting, but failed to do so. An intervenor takes the case as it is found. Rejected, cumulative. 25. Rejected, contrary to the evidence. The evidence does not establish that the failure to complete all of Attachment F was based on it's inapplicability. Attachment F clearly states that inapplicable pages should be so marked and submitted with the response package. If such pages were not returned, as suggested, because there did not apply, then it is reasonable to conclude that the responder failed to read the clearly stated directions to Attachment F. 26-29. Rejected, irrelevant. The DER did nothing more than apply the clearly stated direction that "[a]t a minimum, the entire three page Attachment F shall be submitted in the response package" and imposed the clearly stated penalty, stating that "[f]ailure to submit this Attachment in the response package shall result in the responder receiving a score of zero (0) for minority business utilization." 32-33. Rejected, contrary to the greater weight of evidence that the DER did not waive irregularities where the requirements, and the penalties for noncompliance with said requirements, were clearly stated. The DER did waive other irregularities where the instructions were ambiguous or confusing, or where there was not a specific penalty attached for the failure to follow a specific requirement. The evidence establishes that the DER actions were appropriate. 34. Rejected, immaterial. All three pages of Attachment F were clearly required to be submitted or a score of zero would be awarded. Intervenor E&E The proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 2-3. Rejected, cumulative. 12. Rejected, contrary to the cited evidence. Although Attachment F was discussed in terms of reporting requirements, there were no questions asked related to the directions for completing or submitting the attachment. 21. Rejected, cumulative. Intervenors EBASCO, ABB, OHM, Cherokee and Westinghouse jointly filed a proposed recommended order. The proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 13, 16-17, 43-45, 47. Rejected, unnecessary. COPIES FURNISHED: Carol Browner, Secretary Twin Towers Office Building 2600 Blairstone Road Tallahassee, Florida 32399-2400 Daniel H. Thompson, Esq. General Counsel Twin Towers Office Building 2600 Blairstone Road Tallahassee, Florida 32399-2400 Carolyn S. Raepple, Esq. Carlos Alvarez, Esq. 123 S. Calhoun Street Post Office Drawer 6526 Tallahassee, Florida 32314 E. Gary Early, Esq. Assistant General Counsel Twin Towers Office Building 2600 Blairstone Road Tallahassee, Florida 32399-2400 M. Christopher Bryant, Esq. 2700 Blairstone Road, Suite C Post Office Box 6507 Tallahassee, Florida 32301 George N. Meros, Esq. 101 North Monroe Street Tallahassee, Florida 32301 Barrett G. Johnson, Esq. 315 South Calhoun Street, Suite 750 Tallahassee, Florida 32301 Rex D. Ware, Esq. 106 East College Avenue Highpoint Center, Suite 900 Tallahassee, Florida 32301 W. Robert Venzina, III, Esq. Mary M. Piccard, Esq. 1004 DeSoto Park Drive Post Office Box 589 Tallahassee, Florida 32399-0589 Harry R. Detwiler, Jr., Esq. Post Office Drawer 810 Tallahassee, Florida 32302
Findings Of Fact When, on April 7, 1986, Eunice Odom organized petitioner Three River Contracting, Inc. (Three River) and became its first president, she kept 60 percent of the common stock for herself and gave 20 percent to each of her two children, John Howard "Butch" Odom and Sandra Steward. Ms. Odom organized Three River in order to do specialty contracting with the Department of Transportation (DOT), in fields with which she was not intimately familiar. Three River "do[es] pile jacketing and guniting, and ... a lot of joint seals on bridges .. sandblasting and painting." T.29. But Ms. Odom had considerable experience with other businesses, including one that painted and sandblasted bridges. Respondent's Exhibit No. 4. Over a period of three and a half decades, as secretary and/or treasurer of a succession of family-owned corporations, Ms. Odom has made financial decisions and worked on a daily basis with enterprises that installed septic tanks, dug graves, erected monuments, moved cemeteries, dug ditches, sandblasted and repaired municipal water tanks, and recycled plastic and lead. While Three River's original president, Ms. Odom hired Red Nichols and Dale Harris as Superintendents and foremen, giving them authority to hire and fire their crews. She also "hired a Mr. Lee as estimator for a short period of time." T.75. When Three River came into existence, her son was managing a truck stop at an interstate highway exchange. Only after he sold the truck stop in August of 1986, did he go to work for Three River as an estimator, the job he still held at the time of hearing. Among other significant business experience, he brought eight to ten year's experience as an estimator to Three River. Because the secretary-treasured of Three River, Ms. Odom's daughter, Sandra Steward, also had her own business, she was seldom at Three River's offices. This proved inconvenient, when papers had to be signed both by the corporate president and by the company's secretary-treasurer. At a meeting of the three stockholders, Ms. Odom relinquished the presidency in favor of John Howard and became Secretary-treasured of the corporation, in Ms. Steward's stead. Paragraphs four through seven of the parties' prehearing stipulation consist of the following: Eunice Odom's power is not subject to any formal or informal restrictions evidenced by bylaws, partnership agreements, trust agreements, stock voting agreements, contracts, or any other agreement enforceable in a court of law, of which DOT is aware. See FAC 14-78.005(7)(e). It is customary in the construction industry for owners to hire estimators to assist owners of construction companies in submitting competitive bids. It is customary in the construction industry for owners to hire project managers to direct the day-to-day operations of construction projects on job sites. The salaries for Eunice Odom, John H. Odom and Sandra Steward are as follows: 1986 Eunice Odom $5,250.00 John Odom 9,500.00 Sandra Steward 2,050.00 1987 Eunice Odom $20,800.00 John Odom 52,700.00 Sandra Steward 7,800.00 1988 Eunice Odom $61,400.00 John Odom 65,200.00 The 1988 salaries reflect changes accomplished after Three River had made application for certification as a disadvantaged business enterprise. After DOT indicated its intention to deny Three River's application, John Howard Odom resigned as president and Ms. Odom resumed the presidency, on the advice of counsel. Whatever her title, Ms. Odom has spent 40 hours a week in Three River's office. Depending on what estimates he needed to prepare, John Howard worked from 20 to 100 hours a week. Ms. Odom has final say on which jobs Three River bids on. Neither Ms. Odom nor her son has ever fired any Three River employee. On the job, supervisors have authority to hire and fire workmen. Ms. Odom has full authority to and has in fact hired all of Three River's managers. John Howard was authorized to and did in fact borrow money for Three River, obtaining bank loans secured by a certificate of deposit, in one instance, and by two pick up trucks, in another. But John Manor, the banker whose bank made these loans, testified that he looked to Ms. Odom as the person he "consider[ed] to be the responsible individual," (T.16) "the financially responsible person in that corporation." T.20. She and Mr. Manor had agreed to the loan secured by the certificate of deposit before John Howard came into the bank and executed the papers. The loan secured by the trucks occurred without Mr. Manor's knowledge. Because of the nature of the collateral, a consumer loan officer handled the transaction without involving other bank officers. The evidence did not show who owned the certificate of deposit. Aside from these two secured loans, totalling approximately $46,000, petitioner's application reports indebtedness of another $32,000, and puts the value of the company at $500,000. John Howard testified without contradiction that his mother has the final say on major equipment purchases, and that she had rejected his suggestions that the company acquire a light plane to facilitate estimating jobs downstate; and that Three River buy, instead of lease, a "supersnooper," a truck Specially equipped with "an arm that comes out with a man in it, and ... goes underneath the bridge." T.30.
Recommendation It is, accordingly, RECOMMENDED: That respondent grant petitioner's application for certification as a disadvantaged business enterprise. DONE and ENTERED this 17th day of November, 1989, at Tallahassee, Florida. ROBERT T. BENTON, II 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 17th day of November, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-0976 With respect to petitioner's proposed finding of fact No. 1, the evidence was unclear which month Butch started to work for Three River. Petitioner's proposed findings of fact Nos. 2 through 15, 17, 18, 20, 21, 23, 24, 25, 30, 31, and 34 have been adopted, in substance, insofar as material. With respect to petitioner's proposed findings of fact Nos. 16 and 19, Butch so testified. Petitioner's proposed findings of fact Nos. 22, 26 through 29, 32, and 33 pertain to subordinate matters. Respondent's proposed findings of fact Nos. 1 through 4 relate to free form proceedings that became immaterial, except to frame the issues, once formal proceedings were requested. Respondent's proposed findings of fact Nos. 5, 6, and 8 through 14 have been adopted, in substance, insofar as material. With respect to respondent's proposed finding of fact No. 7, Ms. Odom's experience included some DOT contracting. COPIES FURNISHED: Ruth B. Dillard, Esquire Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Pete Davis, Minority Programs Office Department of Transportation 605 Suwannee Street Tallahassee, Florida 32399-0458 James J. Richardson, Esquire Iamonia Farms Road Post Office Box 12669 Tallahassee, Florida 32317
Findings Of Fact The Respondent issued an Invitation to Bid by which sought to lease approximately 21,000 net useable square feet of office space to be located in Tampa, Florida. This Invitation to Bid is referred to as Lease Number 590:1946. Three bids were received in response to the Invitation to Bid, and they were opened on July 29, 1988. Bids were received from the Petitioner, Structures, Inc., and a third bidder that has not filed a protest, and is therefore not relevant to this proceeding. All bidders were initially determined to be responsive to the Invitation to Bid. Petitioner and Structures, Inc., submitted bids involving the same office space and real property. Petitioners' bid for this space was lower that the bid filed by Structures, Inc., when compared on a present value rental cost analysis. Despite Petitioners' lower bid, Respondent awarded this lease to Structures, Inc., due to the receipt of a letter dated August 2, 1988, from Intervenor, the owner of the subject property, stating that, "Mr. Hartley (Petitioner) has no right to propose this property to the Department as Mr. Hartley and I have no agreements with respect to my leasing the property to him." On the basis of this letter, the Respondent concluded that Petitioners had no legal interest in the subject property and therefore did not have the requisite control over the property to submit this bid. The Petitioners' bid was determined to be nonresponsive. Petitioners did not present competent substantial evidence to discredit or refute Intervenor's contention that they lacked any legal interest in this property. It is undisputed that Intervenor owns the property, and Intervenor was present at the hearing to confirm that the letter of August 2, 1988, was, in fact, his letter. The Petitioner, James C. Hartley, was not present at the hearing. The only evidence presented by Petitioners of any alleged interest in this property is a copy of a telecopy letter dated June 29, 1988, filed with its bid, which purports to express the intention of Intervenor and Petitioner Hartley to enter into a lease for certain property described on an Exhibit A, which was not presented in evidence. Thus, there is no indication on the face of this document that the telecopy letter relates to the subject property. However, even if the letter does relate to the property owned by Intervenor, the agreement specifically states that Intervenor's obligation to enter into a lease with Petitioner is expressly conditioned upon Intervenor's approval, In his sole discretion, of any sublease with the Respondent. If for any reason the Intervenor disapproved of the Petitioners' bid and lease with the Respondent, according to this agreement, he could simply refuse to enter into any lease of the subject property with Petitioners, and thus, Petitioners would have no interest or control over the property, and could not then sublease it to the Respondent. Finally, there is no recital of consideration in the purported agreement set forth in the telecopy letter. Based upon a complete review of the evidence presented, it is found that Petitioners did not have a valid, legal interest in the subject property which would be sufficient to allow them to file this bid and propose this lease to the Respondent. As such, Petitioners' bid was unresponsive.
Recommendation Based upon the foregoing, it is recommended that Respondent enter a Final Order dismissing Petitioners' protest Lease Number 590:1946. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 3rd day of November, 1988. DONALD D. CONN 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 3rd day of November, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-4645BID Rulings on Petitioners' and Intervenor's Proposed Findings of Fact: Petitioners and Intervenor did not timely file a Proposed Recommended Order containing proposed findings of fact. Rulings on the Respondent' Proposed Finding of Fact: Adopted in Findings of Fact 1 and 2. Adopted in Finding of Fact 3. 3-5. Rejected as irrelevant and unnecessary. 6-8. Adopted in Finding of Fact 4. 9. Rejected in Finding of Fact 2, and as irrelevant. COPIES FURNISHED: Joseph D. McFarland, Esquire 520 Second Avenue, South St. Petersburg, Florida 33701 Robert L. Rocke, Esquire Post Office Box 3433 Tampa, Florida 33601 Jack Farley, Esquire W. T. Edwards facility 4000 West Buffalo Fifth Floor, Room 520 Tampa, Florida 33614 Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Miller, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
Findings Of Fact Based upon the testimony and proofs admitted in these proceedings, and upon the matters stipulated by the parties, the undersigned Hearing Officer finds the following facts to exist: Respondent solicited bids for the reroofing of its Winter Park 9th Grade Center Reroofing Project No. 9209 ("the Project"). Respondent also caused to be compiled a Project Manual for the Project, which among other things contains Instructions To Bidders which governed the bidding process. In its Advertisement For Bid, as well as its Instructions To Bidders, Respondent reserves the right to reject any or all Bids. The Instructions to Bidders also reserves the right to reject any and all bids when Respondent, in its sole discretion, deems it to be in its best interest to reject same. The Project Manual contains a bid form to be used by bidders. In it the bidder understands and agrees that the Owner (Respondent) reserves the right to reject the bid or any and all bids for the Project. Such language was contained in the bid submitted by Petitioner. Included in the Project Manual was a document entitled "Affirmative Action Minority and Women Business Enterprises Program for Construction Work and Construction Materials" (hereinafter "the MBE/WBE rule") which had been adopted by the School Board as an administrative rule. The MBE/WBE Rule established MBE/WBE subcontractor and supplier participation goals for Respondent construction projects, and in pertinent part: it requires bidders on Respondent construction projects to solicit (by newspaper advertisements and by letters) MBE/WBE subcontractor and supplier participation in the work on Respondent construction projects, it permits and requires a bidder who fails to meet the goals to demonstrate and prove to Respondent's MBE/WBE Manager that the bidder made a good faith effort to attain the goals, as a condition precedent to acceptance of his bid, and it establishes criteria which a bidder may use or meet in an effort to show a good faith effort. It also permits a bidder to show any other factor to prove the existence of a good faith effort. By Addendum No. 2 to the Project Manual for the Project, Respondent apprised bidders of its amendment to the MBE/WBE Rule which served to alter and increase the participation percentages of the Rule to 27.5 percent. Petitioner's bid was the apparent low bidder of five bids received by Respondent. Petitioner's bid was in the amount of $795,000.00 and was the only bid under budget. The next lowest bid was in the amount of $823,000.00. Cheesbro's bid showed that Cheesbro had no MBE/WBE subcontractor or supplier participation. All other aspects of Petitioner's bid were proper and responsive. None of the other bidders on the Project achieved the 27.5 percent M/WBE participation goal. Section II of the M/WBE Program acknowledges that the 27.5 percent M/WBE participation requirements "are goals only." This section of the M/WBE Program further states that "[n]o bid of any bidder will be rejected by the School Board solely because the bidder fails to attain the goals..., however, the bidder... must demonstrate to the MBE/WBE Manager, within 72 hours after the time of bid opening (exclusive of Saturdays, Sundays, and Holidays), that such bidder made a good faith effort to contract with qualified subcontractors and/or suppliers for the construction work sufficient to meet the requirements of the goals." Petitioner met with the Respondent's M/WBE Manager within 72 hours after the time of bid opening and demonstrated its good faith effort to contract with qualified subcontractors and/or suppliers for the construction work pursuant to the contract documents. The M/WBE Program requires that each bidder must solicit sub-bids and price quotations from MBE and from qualified MBE and WBE contractors. All potential bidders, including Petitioner, received a list of the qualified M/WBE contractors from the School Board at the pre-bid meeting. The M/WBE Program specifically sets forth the manner in which the bidders must solicit "from M/WBE subcontractors and suppliers" and "the failure of a Bidder to solicit same shall render the bid of such bidder unresponsive and the School Board will reject such bid." The School Board's M/WBE Program establishes the format by which each bidder must solicit bids from qualified M/WBE subcontractors and suppliers. Pursuant to the M/WBE Program, each potential bidder must publish advertisements in two daily newspapers which are published and widely circulated in Orange County. The Orlando Sentinel and Orlando Times are identified by the contract documents as two acceptable newspapers for these advertisements. Each bidder must also prepare and deliver, by certified or registered mail with return receipt requested, three solicitation letters to not less than three approved M/WBE subcontractors and/or suppliers. The contract documents identify an approved form for the referenced advertisements and solicitation letters. Further, the bidders must attach to their bids proof of publication and mailing for the advertisements and solicitation letters, respectively. Petitioner complied with each requirement set forth by the M/WBE with regard to soliciting sub-bids and price quotations from M/WBE subcontractors and suppliers. Petitioner timely published the requisite advertisement in the Orlando Sentinel and the Orlando Times as required by the contract documents. Petitioner also went beyond the three solicitation letters required by the contract documents and sent eight solicitation letters to approved M/WBE subcontractors on the Project. Petitioner also attempted to solicit an oral bid from Mavis Painters but none was received by them. Petitioner received only two telephone calls in response to its advertisements and solicitation letters. One M/WBE subcontractor advised Petitioner that it was going to bid on the Project as a prime contractor (which did not occur), and the other M/WBE subcontractors who called advised Petitioner that they would not bid the Project because they were too busy with other work. Petitioner received no other response to either its advertisements or solicitation letters. Petitioner attempted to make telephone contact with some of the M/WBE subcontractors to whom the letters were sent but was unable to contact them. Despite its efforts, petitioner received no price quotations from any approved M/WBE subcontractors or suppliers. And, none was included in Petitioner's bid. Petitioner is a licensed Florida roofing contractor. Petitioner bid the Project as a prime, rather than as a general, contractor. In this regard Petitioner was to retain a substantial portion of the work to be done by its own forces, rather than to subcontract out most of the work. There are certain portions of any project which lend themselves to work by subcontractors who are specialized in a particular trade. On this Project, Petitioner sought price quotations from electrical, mechanical, plumbing, lightweight concrete, and metal roofing subcontractors. These are the areas which Petitioner looked to subcontract to others on the Project. As a roofing contractor it was logical for Petitioner to do the actual roof work itself and to subcontract out the remainder of the work. Petitioner sought price quotations from approved M/WBE subcontractors on the electrical, mechanical, and plumbing portions of the work. None of the lightweight concrete installation or metal roofing M/WBE subcontractors listed by the School Board were approved applicators for the lightweight concrete installation and metal roof as specified for this Project by the School Board's architect. Therefore, Petitioner was unable to obtain any price quotations, and did not request quotations, from any approved M/WBE subcontractors in these two trade areas. Installation by a manufacturer's approved applicator is essential in order to obtain the warranty documents as required by the contract documents. Also, these two subcontract areas make up a substantially larger percentage of the overall contract amount than do the electrical, mechanical, and plumbing sections. While there may be some other areas which Petitioner could have subcontracted to other forces, these other areas were within the general "roofing" scope of work and better able to be performed by Petitioner. The pool of approved M/WBE subcontractors which Petitioner had available to choose from in order to meet the minority participation requirements was therefore severely restricted. Shortly after the bid opening, a representative of Petitioner met with the School Board's M/WBE Manager to demonstrate Cheesbro's good faith effort to achieve the M/WBE percentage participation goals. Petitioner explained the efforts which it had taken. These efforts were beyond the minimum required by the contract documents in order to obtain minority participation on the Project. However, the Assistant to the School Board's M/WBE Manager felt that Petitioner had not made a good faith effort and the Manager agreed and recommended to the School Board that it reject all bids and rebid the Project. This recommendation was based on the Manager's determination that petitioner should have actively solicited bids from M/WBE sub-contractors well beyond sending letters and the newspaper ads. On December 13, 1993, School Board furnished to Cheesbro a written notice of its intended decision to reject all bids. The basis of such intended decision was that no bidder had attained the MBE/WBE goals and that no bidder, including Cheesbro, had shown that it had made the good faith effort required by the MBE/WBE Rule. On December 14, 1993, School Board sustained the determination of the MBE/WBE Manager that a good faith effort was not shown by Cheesbro and rejected all bids as recommended by School Board's Superintendent of Schools. On December 27, 1993 Cheesbro filed a written Formal Protest, which is the subject of these proceedings. There is no evidence or claim that the MBE/WBE Manager, in determining that Cheesbro had failed to prove it made a good faith effort to obtain the goals, acted illegally, fraudulently or oppressively, in reaching her decision. However, the evidence shows that the determination was arbitrary and was not justified based on the proofs offered by Petitioner.
Recommendation Based on the foregoing findings of fact, it is RECOMMENDED that The School Board of Orange County enter a Final Order granting the relief requested by the Petitioner, Cheesbro Roofing Inc., and certifying that Petitioner is the lowest responsive bidder and enter into a contract with Cheesbro for the Project pursuant to the bid. DONE and ORDERED this 9th day of May, 1994, in Tallahassee, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of May, 1994. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on proposed findings of fact submitted by the parties. Proposed findings of fact submitted by Petitioner. Accepted in substance: paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22 (in part), 23. Rejected as argument or conclusion of law: paragraph 22 (in part). Proposed findings of fact submitted by Respondent. Accepted in substance: paragraphs 1, 2, 3, 4, 5, 7, 8, 9, 10, 11 (in part), 12, 13, 14, 15, 16 (in part), 17 (in part). Rejected as argument or conlusion of law: paragraphs 6, 11 (in part), 19. Rejected as against the greater weight of evidence: paragraphs 16 (in part), 17 (in part), 18. COPIES FURNISHED: David K. Wittek, Esquire Wright, Fulford, Moorhead & Wittek, P.A. 145 N. Magnolia Avenue P. O. Box 2828 Orlando, Florida 32802 William M. Rowland, Jr., Esquire Broad and Cassel 390 N. Orange Avenue, Suite 1100 P. O. Box 4961 Orlando, Florida 32801 Dr. Donald Shaw Superintendent Orange County School Board P. O. Box 271 Orlando, Florida 32802-0271 Douglas L. "Tim" Jamerson Commissioner of Education The Capitol Tallahassee, Florida 32399-0400
Findings Of Fact Jennifer Morales-Allison is Hispanic-American and qualifies as a minority as defined in Section 278.012(9), Florida Statutes (1989) (Ex. 6). TSI was incorporated with the intent to obtain certification as a Disadvantaged Business Enterprise (DBE). In carrying out this intent Ms. Allison owns 510 shares of the 1000 shares issued in TSI which constitutes 51% of the stock of TSI. Richard Alberts, the non-minority shareholder of TSI, owns 490 shares or 49% of the stock of TSI. Alberts is president of TSI. TSI is primarily an environmental planning consultant and contracts generally with governments to provide environmental consulting involving road and airport construction. Accordingly, the work performed is technical in nature. Richard Alberts has some 22 years experience in environmental consulting primarily under contracts with the Federal Aviation Administration involving environmental effects of airport construction and state road departments involving environmental effects of highway construction. Prior to the incorporation of TSI Alberts worked at Greiner, an engineering firm doing extensive environmental consulting work, for some eight years. Ms. Allison also worked at Greiner during the time Alberts was employed there. She started out as a word processor-typist, moved up through secretary to office manager. During her eight years at Greiner she worked as secretary for Alberts and later as his administrative assistant. Her working experience was predominantly administrative such as in the preparation of contracts as opposed to technical. She has never served as a project manager or been involved with carrying out environmental contracts other than seeing that the proper personnel were assigned to the project and the agency was properly billed for the services. Although the evidence indicates Ms. Allison contributed $19,876 (51%) and Alberts contributed $19,092.32 (49%) as start up capital for TSI, Ms. Allison's contribution was obtained as a loan from Alberts for which promissory notes were signed. These notes were intended to be repaid from profits of the corporation, although the promissory notes are not so conditioned. Alberts' salary is set at $60,000 per year and Ms. Allison's salary at $40,000. Prior to leaving Greiner Alberts' salary was $80,000 and Ms. Allison's salary was $28,000. The bylaws of TSI (Ex. 5) provide that the president of the corporation shall be the principal executive officer of the corporation and, subject to the control of the board of directors, shall in general supervise and control as manager of technology all of the business and affairs of the corporation. Both Alberts and Allison testified that it was their intent that Alberts supervise the technical aspects of the corporation and Allison would supervise the business aspects of the corporation, and, if necessary, the bylaws of the corporation would be redrawn to express that intent. Both incorporators, Allison and Alberts, testified that Allison made final decisions for the corporation and as 51% owner controlled the vote of the board of directors comprised of Allison and Alberts. As such she had the authority to hire and fire employees, including Alberts. Without Alberts' expertise the corporation could not have successfully commenced operations. He is the incorporator with the knowledge and experience to bid on projects and carry out environmental consulting contracts once obtained. He is also the person who provided all necessary working capital for TSI to commence operations. Finally, he holds the necessary licenses and is qualifying officer for the company's projects. Evidence was submitted that Allison signs checks and contracts on behalf of TSI, that she hires and fires employees, and that she has the final say in all corporate decisions. This evidence is not credible with respect to her having final say in all corporate decisions. If Allison attempted to fire Alberts he could move out with the remaining capital he provided and forthwith start another company similar to TSI; and, if he did so, TSI would undoubtedly fail.
Recommendation It is, RECOMMENDED: That the application of Transportation Solutions, Inc. for certification as a Disadvantaged Business Enterprise be disapproved. DONE and ENTERED this 9th day of September, 1991, in Tallahassee, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of September, 1991. APPENDIX Proposed findings submitted by Petitioner are generally accepted as testimony of the witnesses but, insofar as this testimony is that Ms. Allison controls the operation of TSI, those findings are rejected. Petitioner filed no findings of fact separate from conclusions of law; accordingly, without assigning a number to each paragraph, a ruling on Petitioner's proposed findings cannot be made. Nevertheless, the ultimate paragraph, starting at the bottom of page 6 of the proposed Order, is rejected insofar as it concludes that Ms. Allison has the requisite control to qualify TSI as a minority business enterprise. Proposed findings submitted by Respondent are accepted and are generally included in the Hearing Officer's findings of fact. COPIES FURNISHED: Mark M. Schabacker, Esquire P.O. Box 3391 Tampa, FL 33601-3391 Harry R. Bishop, Esquire 605 Suwanee Street Tallahassee, FL 32399-0458 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwanee Street Tallahassee, FL 32399-0458 Thornton J. Williams, General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, FL 32399-0458
Findings Of Fact Kasper Corporation, a speciality subcontractor, was formed during April 1987, and is engaged in the business of performing concrete gutter work, curb elements, traffic separators, barrier walls, sidewalks, formation of ditch and slope pavement, pipe culverts, and storm sewers. Most of its business activities are conducted in the area of Pasco, Hillsborough, Pinellas, Hernando, Citrus, Manatee and Sarasota counties. Ms. Deneweth purchased 100% of the stock of Kasper Corporation in September, 1988 for the sum of $10.00. Ms. Deneweth contends that she has deposited approximately $9,000.00 into the corporation between September and December, 1988 and has withdrawn approximately $6,000.00 as a withdrawal of capital. No documentation was provided to substantiate either the deposit or the withdrawal of funds by Ms. Deneweth. Prior to Ms. Deneweth's purchase of Kasper Corporation, she had no training or experience in the principal business activities in which Petitioner is engaged, having graduated from high school during June 1981, and having been employed as receptionist/secretary and office manager for a regional medical center, a physician and an engineering firm from 1981 thru 1987. Kasper Corporation's field supervisor is Steven D. Kasper, a nonminority, whose training and experience includes substantial concrete construction work. Steven Kasper is responsible for preparation of job estimates and the submission of bids to prime contractors. Kasper works in cooperation with Michael R. Knox, a civil engineer who is also a nonminority. Knox is employed by Petitioner as a consultant. Ms. Deneweth, the only minority involved in the internal operations of Kasper Corporation, has limited experience in the principal operations of Kasper Corporation. Ms. Deneweth has no training or working knowledge of the requirements and procedures for bid preparations, of the type of equipment or materials required to perform the principal activities of Kasper Corporation. Ms. Deneweth lacked familiarity with all significant details of Petitioner's internal operations, field operations, financial operations and the bidding procedures. All significant bidding, principal construction activities and financial requirements are carried out by the two nonminorities, Messrs. Kasper and Knox.
Recommendation Based on the foregoing findings of fact and conclusions of law it is recommended that Respondent enter a Final Order denying Petitioner's application for recertification as a disadvantaged business enterprise pursuant to Chapter 14-78, Florida Administrative Code. RECOMMENDED this 24th day of April, 1990, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL 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 24th day of April, 1990. COPIES FURNISHED: Vernon L. Whittier, Jr., Esquire Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Marianne Deneweth, President KASPER CORPORATION 5006 Trouble Creek Road Suite 215 New Port Richey, Florida 34652 Robert Scanlan, III, Esquire General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, Florida 32399-0458 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458
Findings Of Fact Department of Transportation (DOT) Project #02000-3608 is a federal aid highway project requiring the replacement of a bridge on Kings Bay Drive over a canal near the Crystal River in Citrus County, Florida. The bridge is currently closed due to hurricane damage. The bid specifications were published, and a bid submittal deadline of March 28, 1990, was established. The bid specifications included a disadvantaged business enterprise (DBE) goal of 10%, and hiring goals of 6.9% female and 17.1% minority. The bid specifications also included the following special provisions related to DBE: PREPARATION OF PROPOSALS * * * 2-5.3.2 Submittals for Contracts with Goals: For all contracts for which DBE contract goals have been established, each contractor shall meet or exceed or demonstrate that it could not meet, despite its good faith efforts, the contract goals set by the Department. The DBE participation information shall be submitted with the Contractor's bid proposal. Award of the Contract shall be conditioned upon submission of the DBE participation information with the bid proposal and upon satisfaction of the contract goals or, if the goals are not met, upon demonstrating that good faith efforts were made to meet the goals. The Contractor's bid submission shall include the following information (Submitted on Forms Nos. 275-020-002-DBE Utilization Affirmative Action Certification, 275-020-003-DBE Utilization Summary and 275-020-004-DBE Utilization Form): The names and addresses of certified DBE firms that will participate in the contract. Only DBEs certified by the Department at the time the bid is submitted may be counted toward DBE goals. A description of the work each named DBE firm will perform. The dollar amount of participation by each named DBE firm. If the DBE goal is not met, sufficient information to demonstrate that the contractor made good faith efforts to meet the goals. * * * DISQUALIFICATION OF BIDDERS ARTICLE 2-11 (Page 11) is expanded as follows: (h) Failure to satisfy the requirements of 2-5.3. * * * (Petitioner's exhibit #2, emphasis added) DBE goals for projects to be bid are established at DOT by a committee which includes a representative from the agency's Bureau of Minority Programs. From a list of individual bid items, the committee determines which items are normally subcontracted. Those items are totalled to achieve a percentage of the job. The Bureau of Minority Programs then reviews the list to determine the number of DBEs, from the agency directory, which would be available to perform the subcontracted work in the relevant geographical area. The Bureau of Minority Programs then makes its recommendation to the goals-setting committee. For example, if 40% of the job would normally be subcontracted and DBEs were available to perform 50% of that work, the goal could be set at 20%. In practice, the goals are not set so high, and the most common goal is 10%, as that is the overall goal of the DOT. Goals vary, depending on the type of work, the location and the availability of DBEs. Hiring goals are also established for each project, but in contrast to the DBE goals, they are not considered in the award of a bid. Four firms responded to the bid advertisement for Project Number 02000- 3608. The Cone Corporation was the low bidder at $588,793.45. Cone Constructors, Inc. bid $629,736.85. Piling and Structures, Inc. bid $700,436.53; and Leware Construction Company bid $733,333.33. The Cone Corporation bid included DBE utilization forms indicating that $56,000.00 would be subcontracted to H.S. Thompson Construction Company for concrete and rebar work. This amounts to approximately 9.5% of its bid. The Cone Corporation did not submit any statement with its bid package as to how good faith efforts were made to comply with the DBE goal. A good faith effort committee of the department met to review the bids, and determined that it could not evaluate the Cone Corporation's good faith efforts because no information was provided. Cone Constructor, Inc., the next lowest bidder, provided a $70,000.00 subcontract with a DBE firm, D.A.B. Constructors, Inc., for various work items related to the project. This amounts to approximately 11% of its bid, and meets the specified 10% goal. Piling and Structures, Inc., provided for six DBE subcontractors for a total of $56,000.00, or approximately 8% of its bid; and Leware Construction Company, the highest bidder, provided for four DBE subcontractors, for a total of $76,887.45, or approximately 10.5% of its bid. Thus, two bidders met the specified DBE goal, and two did not. The good faith efforts committee recommended that Cone Corporation's bid be declared nonresponsive because the DBE goal was not achieved and documentation of good faith effort was not submitted. The committee noted that DBE utilization forms submitted by other bidders indicated that there were other DBE subcontractors available for work on the project. Bob Graham is vice-president of the Cone Corporation and has worked for the firm for ten years. He is responsible for the day to day management of the firm, and he prepared the project bid. Bob Graham concedes that the DBE subcontract in his bid does not meet the 10% goal. He solicited and received other DBE subcontract quotations, but rejected them as being higher than non-DBE quotations. Only one DBE subcontractor responded lowest in an area of work and Graham submitted that firm, H.S. Thompson, as part of his bid. Bob Graham also admits that he did not submit any good faith documentation with his bid to demonstrate that an effort was made to meet the DBE goal. Bids are commonly compiled at the last minute, with the bidders assembling various quotations and putting together final numbers to meet the bid deadline. Graham simply did not have time to add the good faith effort documentation. He made a considered business decision to reject all but one DBE subcontractor, in favor of being able to submit a lower bid. He knew at the time that his bid was submitted that the DBE goal was not met. His bid was approximately $41,000.00 lower than the next lowest bid. For an additional $2,800.00 he could have met the 10% goal. This, of course, was apparent only after the bids were opened.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED That a Final Order be entered, dismissing the protest of Petitioner, the Cone Corporation. DONE AND RECOMMENDED this 9th day of July, 1990, in Tallahassee, Leon County, Florida. Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of July, 1990. COPIES FURNISHED: W. Crit Smith, Esquire SMITH AND THOMPSON, P.A. 1530 Metropolitan Blvd. Tallahassee, FL 32308 John H. Beck, Esquire 1020 East Park Avenue Tallahassee, FL 32301 Paul J. Martin, Esquire and Susan P. Stephens, Esquire Department of Transportation Haydon Burns Building, M.S. #58 605 Suwannee Street Tallahassee, FL 32399-0450 Ben G. Watts, Secretary Attn: Eleanor F. Turner, M.S. #58 Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0450 Thornton J. Williams, General Counsel Department of Transportation 562 Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0450 =================================================================
The Issue Whether the Petitioner is entitled to certification as a disadvantaged business enterprise.
Findings Of Fact ALS is a Florida corporation which filed an application for DBE certification on or about August 21, 1996. On December 13, 1996, the Department issued the notice of intent to deny Petitioner’s application. ALS is owned by Rachel and Bobby Lines. Mr. Lines owns forty percent of the company, his wife the remaining sixty. Mrs. Lines serves as president for the corporation. ALS is in the business of providing seeding and grassing services for construction contracts. Mr. and Mrs. Lines have been in this business since the 1970s. Mrs. Lines has a bachelor’s degree in business and has always had an active role in the family business. In 1979 and 1980 Mrs. Lines borrowed $10,000 and invested the money in ALS. These loans were secured by assets which did not belong to Mr. Lines. Unlike his wife, Mr. Lines was not personally liable for the loans. Similarly, in 1981 and 1983 Mrs. Lines obtained loans for which she was personally responsible and used the funds to benefit ALS. All loans secured by Mrs. Lines were repaid by Petitioner. During the years the loans were secured, Mr. Lines did not borrow monies, for which he was personally responsible, to fund ALS business activities. In short, Mr. Lines made no capital contribution to the business commensurate with the funding Mrs. Lines put into the business. When the Petitioner was incorporated in 1980, one hundred percent of the corporate stock was placed in Mr. Lines’ name. Although Mrs. Lines agreed to this arrangement, it did not truly reflect the partnership that she and her husband enjoyed regarding the business. Moreover, the issuance of the stock in her husband’s name did not accurately consider and compensate her for the loans for which she personally would have been liable had the company not repaid the sums she secured in its behalf. Mrs. Lines has worked full-time for the Petitioner since 1986. It is undisputed that she is responsible for the day-to-day operations of the company. In 1991, Mr. Lines conveyed sixty percent of the Petitioner’s stock to his wife. Mrs. Lines became president of ALS at the same time. In 1995, ALS was certified by Palm Beach County, the Palm Beach County Aviation Authority, and the South Florida Water Management District as a minority business enterprise. While it is apparent both Mr. and Mrs. Lines have contributed “sweat equity” to their company, only Mrs. Lines has personally been liable for loans taken out in order to put money into the company.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a final order granting Petitioner’s application for certification as a DBE. DONE AND ENTERED this 4th day of June, 1997, in Tallahassee, Florida. J. D. PARRISH 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 4th day of June, 1997. COPIES FURNISHED: Ben G. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Attn: Ms. Diedre Grubbs, MS #58 Pamela Leslie, General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, Florida 32399-0450 Mary S. Miller Assistant General Counsel Department of Transportation Haydon-Burns Bldg, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Mary Piccard, Esquire Vezina, Lawrence & Piscitelli, P.A. 318 North Calhoun Street Tallahassee, Florida 32301
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 Petitioner obtained bid specifications and submitted the lowest bid on Department of Transportation project No. 12075-3408 to construct rest station facilities on the I-75 in Lee County. The specifications established a goal of 15 percent of the subcontracts be let to Disadvantaged Business Enterprises (Exhibit 1). If the successful bidder failed to meet this goal, he must show a good faith effort to meet the goal was made else his bid would be deemed non-responsive and rejected. Rules 14-78.01 through 14-78.09, Florida Administrative Code, which became effective in June, 1984, were the controlling regulations at the time the bids for the project were solicited. These rules eliminate the former classification of Minority Business Enterprises comprised of minorities and women and replaces it with a Disadvantaged Business Enterprise (DBE) and a Women's Business Enterprise (WBE) classifications. In the instant contract a goal was established only for DBE. Actions to be taken by the bidder to meet these goals were contained in the bid package, as were the criteria by which the bidder's good faith efforts to meets these goals would be evaluated by DOT. The bid specifications required the contractor, if he failed to meet the DBE goal established, to submit all documentation to support his claim that a good faith effort had been made. With his bid Petitioner submitted only a list of 28 subcontractors from whom it had solicited bids, of which 6 were WBEs. That list showed the date request for bid was sent by certified mail by Petitioner, the date return receipt was received, whether a bid was received, and date back-up phone call was made. That document showed three listed companies submitted bids. DBE/WBE utilization form No. 1 (Exhibit 1) submitted by Petitioner showed no bids were received. Petitioner explained this discrepancy at the hearing, that he had rejected the three bids received because they were more than one percent higher than the bid submitted by another subcontractor. Documentation of this fact did not accompany Petitioner's bid. Upon receipt of Petitioner's bid showing no DBE subcontractor, the bid was submitted to the Good Faith Effort Committee at DOT to evaluate the information contained in the bid to determine if Petitioner had submitted documentation to support his good faith efforts to meet the DBE goal. That committee found Petitioner had not provided adequate documentation of its efforts and recommended the bid be declared non-responsive (Exhibit 8). Prior to Rules 14-78.01 through 14-78.09, Florida Administrative Code, becoming effective in June 1984, the rules allowed the contractor an additional ten days after bid opening to submit evidence that good faith efforts had been made to meet DBE goals. After June 1984 all documentation of good faith efforts are required to be submitted with the bid where DBE goals are not met. In the event the DBE goal is not met by the contractor in his bid submission, the bid specifications (Exhibit 1) require the contractor to submit sufficient information to demonstrate he made good faith efforts to meet the goal. Those bid specifications further list nine items the Department will consider in evaluating the contractor's good faith efforts. These include submitting written notice by certified mail to all certified DBEs which perform the type work which the contractor intends to subcontract; whether the contractor selected economically feasible portions of the work to be done by DBEs; whether the contractor provided assistance to DBEs in reviewing plans and specifications; whether DBE goals were met by other bidders; whether contractor submits all quotations received from DBEs and, for those not accepted, an explanation of why not; whether contractor assisted DBEs in obtaining required bonding, lines of credit or insurance; whether contractor elected to subcontract types of work meeting capabilities of DBEs; whether contractor's efforts were merely proforma; and whether contractor has, on other contracts within the past six months, utilized DBEs. A list of certified DBEs is contained in Exhibit 7, which was available to Petitioner. Therein are listed many DBEs other than those on the list submitted by Petitioner with his bid. At the hearing return receipts for certified mail soliciting bids from DBEs by Petitioner were admitted into evidence, over objection, as Exhibit 3. Since the rules require all documentation of good faith efforts be submitted with the bid, that exhibit is not relevant. However, that exhibit clearly shows all certified DBEs were not solicited by Petitioner. Of those nine items Petitioner was notified would be considered by the Department in evaluating his good faith efforts to obtain the DBE goal, the evidence submitted with Petitioner's bid showed compliance with none. This gas the first bid submitted by Petitioner to Respondent. Other bidders met the DBE goals and the bid was awarded to the second low bidder.
