Findings Of Fact In 1984 and for many years prior Petitioner held a Certificate of Qualification to bid on and be awarded contracts let by the Department. On April 10, 1984, Petitioner entered into a voluntary plea, and was convicted of a one-count criminal violation of Title 15, USC, Section 1, which is commonly known as "The Sherman Antitrust Act." The charge involved a public contract with the Florida Department of Transportation in which Petitioner received a complimentary bid from another contractor who was bidding on the same project which was awarded to Petitioner. This practice is commonly known as "bid rigging." The conviction took place in the U. S. Northern District Court of Florida. Petitioner would have submitted the same bid on this project without the benefit of the complimentary bid. 33 C.F.R, Part 16, provides for a maximum debarment on first conviction of 36 months by a federal agency. Petitioner was debarred by the Federal Highway Administration for only six (6) months based upon a review and determination of culpability of the Petitioner in the crime of which Petitioner was convicted. Immediately subsequent to December 17, 1984, Petitioner was declared acceptable for employment on highway projects which required approval or concurrence of the Federal Highway Administration. On June 18, 1984, Respondent revoked the Petitioner's Certificate of Qualification for a period of 36 months pursuant to Florida Statutes 337.165(2)(a). The only reason given for the revocation was the aforementioned conviction. With the exception of Petitioner, who has never had a decision rendered on a Petition for Reinstatement by Respondent, every contractor who has been debarred and/or had its Certificate of Qualification revoked by Respondent pursuant to Section 337.165, Florida Statutes, who has petitioned for reinstatement, has been reinstated by Respondent. Exhibit "A" hereto is a list of contractors who were debarred by Respondent and were reinstated. It was in the public interest to reinstate each of these contractors. It is in the public interest and the interest of the Respondent to build roads, build them at a good price, and have a competitive bidding system with integrity. Petitioner has promptly and voluntarily continued to pay its fine of $65,000 to the Federal Court. No payment of damages has ever been requested by the State as a result of the Petitioner's violation of state or federal antitrust laws. The Petitioner notified the Respondent within thirty (30) days after his conviction of the contract crime. Petitioner has the manpower, equipment, financial resources, and contracting experience to meet the Respondent's requirements in those areas for the purpose of a Certificate of Qualification. Howard H. Hewitt became affiliated with Square D Contracting Company in 1967 when he acquired a minority interest in the company. He subsequently increased that interest to 50 percent. In 1980 he acquired the remainder of the stock and changed the name of the company to Hewitt Contracting Co., Inc. In 1980 the Florida Attorney General's Office commenced an investigation of bid rigging by road contractors. In February 1983 the Attorney General's Office subpoenaed Hewitt to appear under their Civil Investigative Demand procedures and give evidence about his knowledge of bid rigging in Florida. He appeared and, on the advice of counsel, refused to give testimony claiming protection under the Fifth Amendment. By Court Order, Exhibit 8, dated June 24, 1983, Hewitt was directed to give testimony to the Florida Attorney General under grant of immunity from criminal prosecution and from any civil penalty as provided in s. 542.21(1), Florida Statutes (1981), as to those transactions about which he testifies. In compliance with that order he submitted documents and testified before assistant attorneys general three times. A grant of immunity by the Florida Attorney General's Office would not shield Hewitt from federal prosecution. Following the filing of charges by the Federal District Attorney, Hewitt provided testimony to federal officials several times regarding his knowledge of contract crimes, dropped his membership in the Florida Road Builders Association, started using a different hotel during his appearances in Tallahassee, and limited his contacts with fellow contractors to those necessary to conduct business. In a subsequent damage trial brought by the Attorney General's Office against Ezelle Construction Company, Hewitt advised both parties that he would testify for neither and, upon advice of counsel, would claim the Fifth Amendment if subpoenaed. Neither side subpoenaed Hewitt. The jury found Ezelle not liable for damages as claimed by the Attorney General. The only witness called by Respondent, Assistant Attorney General Bayard W. Heath, testified that the critical part of the bid rigging investigation in which he was involved occurred in 1983 at which time Hewitt asserted the Fifth Amendment privilege and caused a change in the investigation plans of the antitrust division. When Hewitt's counsel in January 1985 advised Heath that Hewitt would take the Fifth Amendment if subpoenaed to testify in the civil damages suit brought against Frank Ezelle, et al., he released Hewitt from the subpoena and did not attempt to enforce the subpoena. Petitioner presented one rebuttal witness, the attorney who represented Hewitt during the civil investigative demand procedures by the antitrust division of the Attorney General's Office. He testified that he was never advised by Heath or any other attorney from the Florida Antitrust Division that there was a critical period during which Hewitt's testimony was wanted, or that they were in any manner dissatisfied with the cooperation given by Hewitt after the grant of immunity. This witness also testified that an offer by Hewitt to settle any charges against him by an offer to pay damages to the state was flatly rejected by the antitrust division and that he was told that if Hewitt cooperated with the antitrust division they would decide after the fact what action they would take against petitioner. Prior to the revocation of its Certificate of Qualification in 1984, Square D and subsequently Hewitt Contracting Co., Inc., enjoyed a reputation as a competitive bidder who completed projects in a timely and professional manner. Two witnesses employed by Respondent in the area of Petitioner's headquarters opined that reinstatement of Petitioner's Certificate of Qualification would enhance the road building and construction work in Florida by the addition of Petitioner as an active participant in the bidding process. Subsequent to the conviction in the Federal Court Petitioner prepared a Code of Conduct for Employees of Hewitt Contracting Company (Exhibit 4) and distributed this to all personnel involved in preparing bids for Petitioner. Additionally, Howard H. Hewitt personally approves all bids submitted by Petitioner and supervises those preparing these bids. Howard H. Hewitt expressed remorse about the company's prior activity leading to the conviction and is committed to ensuring that it never occurs again.
Findings Of Fact Respondent is and at all material times has been a registered sheet metal contractor in the State of Florida. In fact, Respondent qualified in aluminum fabrication and erection. He holds license number RS 0025757. From 1984 through September, 1986, Respondent owned and operated Robinsons Aluminum Products, Inc. The company, which was located in Tampa, sold and erected aluminum screen enclosures. Respondent was the qualifying agent for the company. On August 19, 1986, Margaret Haden entered into a contract with Robinsons Aluminum Products, Inc., signed by Respondent as representative, for the construction of a screen room and slab, roof, and door for the room. The total contract price was $1575. Mrs. Haden paid a $550 deposit by check dated August 21, 1986, and the remainder was due on completion. Shortly after entering into the contract, Respondent prepared drawings and sketches for the job. He then submitted these drawings and sketches to the homeowners' association, whose approval was required before Respondent could obtain a building permit or begin the work. The homeowners' association did not immediately respond to the request for approval. After seven to ten days, Mrs. Haden called Respondent to find out why work had not begun. Respondent called the homeowners' association and learned that they were changing offices and everything was in disarray. Two to three weeks after the date of the contract, Respondent received verbal approval from the homeowners' association, but was unable to get written approval. At about this time, Mrs. Haden fired him, hired a new contractor, and demanded her $550 back. Respondent refused to return the deposit.
Recommendation In view of the foregoing, it is hereby RECOMMENDED that a Final Order be entered dismissing the Administrative Complaint. ENTERED this 20th day of May, 1988, in Tallahassee, Florida. 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 20th day of May, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-0573 Treatment Accorded Petitioner's Proposed Findings 1-4. Adopted in substance. Rejected as unnecessary. Rejected as unsupported by the evidence. 7-9. Rejected as legal argument. COPIES FURNISHED: David E. Bryant, Esquire Bryant, Reeves & Deer 220 East Madison Street Suite 530 Tampa, Florida 33602 Benito Tortora 2516 Gresham Drive Orlando, Florida 32807 Fred Seely Executive Director Construction Industry Licensing Post Office Box 2 Jacksonville, Florida 32201 William O'Neil General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 3299-0750
Findings Of Fact James R. Johnson holds general contractor's certificate number 004762 and has been doing business as J. R. Johnson Company, a Florida corporation from a period around March 23, 1973 up to and including the time of the allegation set forth in the administrative complaint. On or about October 16, 1974, James R. Johnson, d/b/a J. R. Johnson Company, a Florida corporation, entered into a contract with The Sisters of St. Joseph, Inc., a nonprofit Florida corporation to build the Villa Folora Addition, St. Augustine, Florida, for a contract price of $177,244.00. Petitioner's Exhibit "A", admitted into evidence is a copy of the contract. During the course of the work on the project, J. R. Johnson Company supplied The Sisters of St. Joseph, Inc., with sworn certificates and applications for payment as signed by its employee and agent, one Frank Jaquett, which certified that all suppliers of labor, services and materials were being duly paid. The applications and certification of payments are found in Petitioner's Exhibit "B", admitted into evidence. At the period of about February 4, 1975, The Sisters of St. Joseph, Inc., had paid J. R. Johnson Company the sums of $31,434, $52,844, and $51,785, representing the payments for the certificates and applications for payment as set forth in Petitioner's Exhibit "B". At the time the Respondent was working on the subject project, he was also doing work in North Carolina. One of the projects in North Carolina was a shopping mall identified as Berkley Mall. This project had been started in 1974 and around June 25, 1974, the lender on that project failed financially and problems commenced. Between February 7 and February 15, 1975, the bonding agent on the mall project in North Carolina went into bankruptcy. One of the subcontractors on the St. Augustine project, was a partnership known as AAA Plastering, in which George Chandler was a 50 percent owner. On February 25, 1975, AAA Plastering placed a claim of a lien on the project in the amount of $18,000. This claim of lien is shown in Petitioner's composite Exhibit #C, admitted into evidence. In January, 1975, the AAA Plastering had been paid $1,600 for work done on the project. This payment was made by J. R. Johnson Company. Subsequent to that date, no further payment has been made by J. R. Johnson Company to AAA Plastering. After the January payment of $1,600, AAA Plastering was entitled to $16,200 further payment, based upon final calculations under the contract terms. There had been a dispute between the Respondent and AAA Plastering about the quality of the plasterer's work, and this was indicated in testimony given in the course of the hearing, and supported by Respondent's Exhibit "A", which is a letter from the architect commenting on the work itself. The Respondent's Exhibit "A" was admitted into evidence. Nonetheless, the work was completed by AAA Plastering and payment over and above the $1,600 payment was not forthcoming from the Respondent. The only additional payment which AAA Plastering company did receive was $7,620, which was a result of a court disbursement after the Respondent had failed to make the payments and the owner of the project had entered into the suit and made disbursement. AAA Plastering Company gave a satisfaction of lien in return for the payment of $7,620. Other liens had been filed against the project as shown in Petitioner's composite Exhibit "C". These liens had reached amounts as high as $76,000 in April, 1975. An amount of $41,181 was paid out through the court in satisfying these liens that had been recorded. All liens, including the AAA Plastering Company lien were for labor, services or materials supplied by the said subcontractors to the Villa Flora Addition for which J. R. Johnson Company had made application for payments in three payment requests. The J. R. Johnson Company did not pay the money received from The Sisters of St. Joseph, Inc., to the subcontractors who had filed the said liens, the liens being filed in February and March, 1975. The Petitioner's Exhibit B", shows that the stucco and drywall work, in which the AAA Platering Company was involved, was applied for and certified for payment by the representative of the Respondent in the amount of $4,967 for the period of November 25, 1974 through December 30, 1974 and in the amount of $16,143 for the period of December 30, 1974 through January 24, 1974. As indicated before, the approximate amount of the AAA Plastering Company contract was in the vicinity of $18,000, for which the AAA Plastering Company was only paid $1,600 from the Respondent. Notwithstanding the Respondent's contention that the work by the AAA Plastering Company was not up to standards and did not warrant a 100 percent satisfaction of the agreement with the AAA Plastering Company, the Respondent has not adequately explained the disparity between the $1,600 paid and the $17,800 requested. The Respondent and his bookkeeper, Robert Bensinger are unable to identify the Respondent's position on the per- centage amount of payment which they felt the AAA Plastering Company was entitled to. George Chandler, a partner in the AAA Plastering Company at the time of the contract, indicated that in February, 1975 he had approached the Respondent, in the person of Mr. Bensinger for payment over and above the $1,600 that he had been given. Mr. Chandler approached Mr. Bensinger because he felt that the AAA Plastering Company had completed the project and was entitled to payment. According to Chandler, Bensinger told him that he could not pay him the money because the money that had been paid by the owner in the Villa Flora project had been sent to the North Carolina Project and any payment would be made to AAA Plastering Company upon receipt of payment due on the North Carolina project. At the time that the North Carolina project, the Villa Flora project and several other projects were under way, the Respondent had a common bank account for all those projects, in which moneys received from the owners were kept. Based upon a review of the testimony and the documents offered into evidence and specifically of Mr. Chandler, it is determined as a matter of fact, that AAA Plastering Company was entitled to a greater portion of those funds received from the owner in the form of disbursements to the Respondent, than it received and it is further determined that money was taken from the Villa Flora project and used to honor obligations on the project in North Carolina.
Recommendation It is recommended that the Petitioner revoke the certified general contractor's license of James R. Johnson, Number 004762. DONE and ENTERED this 22nd day of July, 1976, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 COPIES FURNISHED: Barry S. Sinoff, Esquire 1010 Blackstone Building 233 East Bay Street Jacksonville, Florida 32202 Eugene Loftin, Esquire 1636 Shadowood Lane Jacksonville, Florida 32207 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD, Petitioner, vs. CASE NO. 75-2073 JAMES R. JOHNSON dba J. R. JOHNSON COMPANY, CG C004762, c/o Eugene Loftin, Esquire, 1636 Shadowood Lane, Jacksonville, Florida 32207, Respondent. /
The Issue The issues in this matter are as promoted by an administrative complaint brought by the State of Florida, Department of Professional Regulation against William B. Garrison. In particular, the respondent is charged with having diverted funds or property received for the completion of a specific project in violation of Section 489.129(1)(h), Florida Statutes (1979). In addition, the respondent is charged with signing a statement falsely indicating that payment had been made for all subcontracting work, in violation of Section 489.129(1)(1), Florida Statutes (1979), and of making misleading, deceptive, untrue or fraudulent representations in the practice of his profession in violation of Section 455.227(1)(a), Florida Statutes (1979). It is the respondent's denial of these accusations and request for formal hearing which eventuated in this recommended order.
Findings Of Fact Respondent is a holder of a registered building contractor's license issued by the Florida Construction Industry Licensing Board. That license number is RB0029142, first issued in 1975. Respondent has been associated with the construction business on a full time basis since 1970. From 1975 through 1981 respondent operated as Garrison Builders of Tallahassee, Inc. At all times relevant to the administrative complaint, respondent was the qualifier of Garrison Builders of Tallahassee, Inc., pursuant to Section 489.119, Florida Statutes. On August 6, 1980, Garrison Builders of Tallahassee, Inc., contracted with TBW, Inc., to build eight townhouses at Larette Drive, in Tallahassee, Florida, for a contract price of $269,424.00. That base contract price was subject to change orders, the first of which decreased the contract price by $8,000 and the second which increased the contract price by $864.00. As a consequence, the final contract price was $262,388.00. Garrison Builders of Tallahassee, Inc., was paid a total of $257,598.38 under the terms of the contract. Garrison Builders paid out, related to the account for this project, $257,890.01. As of March 31, 1981, respondent had failed to pay the following subcontractors and materialmen in the amounts designated: Butterfield's Floor Covering, Inc. $ 277.10* Barineau & Sons Heating and Air Conditioning 2,420.00 Big Bend Rental Center, Store #1 596.96 Sam Crowder Co. 61.39 Discount Lumber, Inc. 445.33* Ken Driggers, Inc. 32.14 Deep South Insulation Co. 600.00 John T. Daniel Cabinet Co. 3,400.00 Miller Sheet Metal 1,292.00 Melco Wood fixtures 1,502.59 Maples Concrete Products Co., Inc. 1,571.31 Quality Plumbing, Inc. 5,864.00* Tallahassee Glass & Screen 690.56 Tallahassee Rug Co. 1,486.51 Yarbrough Paint & Decorating Center 1,589.15 City Building Department-Systems Charges 1,790.10 Wallpaper Installation-50 rolls @ $7.00/roll 350.00* Total $23,969.14 *Billing not complete The contract between Garrison Builders and TBW was to be performed in 150 days after August 6, 1980, subject to allowances for rain days, etc. Garrison Builders was responsible for satisfying the claims of the materialmen and subcontractors as reflected above, in keeping with the terms of the contract. Respondent, as president of Garrison Builders, was responsible for the overall project. In keeping with the contract terms, respondent and the job foreman for the subject project made application and certification for payment. These applications and certifications may be found as part of the petitioner's composite Exhibit Number 2, admitted into evidence. The last of those applications was made by the respondent on February 17, 1984. Prior to that payment, Garrison Builders had been paid $247,136.70. On that occasion, as on other occasions, respondent certified, "that all amounts have been paid by him for work for which previous certificates for payment were issued and payments received from the owner. . . ." in signing the certification for an additional $10,461.68 draw. At that point in time approximately 98 percent of the job had been completed. Nonetheless, contrary to the certification statement, materialmen and suppliers had not been paid as demonstrated in the accounting set forth above showing that as of March 31, 1981, $23,969.14 was still owed, which amount far exceeds the difference between the contract price of $262,388.00, and the amount Garrison Builders had been paid prior to the last draw, i.e., $247,136.70. That differential is $15,251.30. In a meeting in March 1981 at which respondent attended and was represented by counsel, respondent admitted to a representative of TBW that materialmen and suppliers had not been satisfied in terms of payment. By affidavit of April 3, 1981, a copy of which is petitioner's Exhibit Number 5 admitted into evidence, he acknowledged the $23,969.14 of outstanding claims effective March 31, 1981. Moreover, in a court appearance involving TBW and some of the materialmen and suppliers in which the question of possible liens by those latter entities was litigated, respondent admitted that he had lied in his statement of certification in the contractor's application and certificate for payment, wherein he stated that all materialmen and suppliers had been satisfied before obtaining payments under the contract. This admission, taken in the context of the other facts found, indicates that the respondent appreciated that materialmen and suppliers had not been paid when he made application for the February 17, 1981, draw and swore that they had. This oath as to that circumstance was not one of mistake or inadvertence. It was a comment made with the knowledge of the implications of the oath. Thus, the effect was to be false, misleading, deceptive, untrue and fraudulent, contributing to a loss of $277.10 which the owner paid Butterfield Floor Covering without reimbursement. Respondent was not paid the balance of the contract price, the owner having claimed that the contract was 90 days beyond the contract date for completion, and upon the assertion by the owner that additional funds had to be expended to complete the contract over and above the contract amount. Respondent claims that the reason for late completion concerned a problem with a subcontractor who was providing cabinets, one John Daniel. In addition, respondent alludes to the fact that he was in the hospital from November 10, 1980, through November 20, 1980, and again from December 2 through 19, 1980, and as a consequence was unable to supervise the job in a manner which he preferred. Daniel was a subcontractor chosen by the owner and accepted by the respondent. From a review of the evidence, it is unclear whether Daniel was the responsible agency for the project being approximately 90 days over the contract period. It is also uncertain whether the essentially 90 day delay was in view of respondent's failures as responsible agent for Garrison Builders. Had Garrison Builders been responsible the owner would have been entitled to deduct essentially $20 a day for late penalties. Finally, the owner's claim of expenditures in excess of $10,000 to complete the job was not satisfactorily proven. In summary, the job was late for reasons unestablished. Certificates of occupancy were issued for the eight units in March 1983 signaling the completion of the job. On the subject of whether respondent diverted funds and property from this project into other projects thereby affecting the outcome of the project, the proof on balance demonstrates that Garrison Builders, under the aegis of the respondent, made a bad bargain by underbidding this project as opposed to diverting funds and property to other pursuits.
Recommendation Upon consideration of the findings of facts and conclusions of law, it is RECOMMENDED that a final order be entered which finds the respondent guilty of a violation of Section 489.129(1)(1), Florida Statutes, and Section 455.227(1)(a), Florida Statutes, and dismisses the allegation of a violation of Section 489.129(1)(h), Florida Statutes. For the violations established, a penalty of a 60 day suspension should be imposed against the respondent. DONE AND ENTERED this 11th day of September 1984 in Tallahassee, Florida. CHARLES C. ADAMS 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 11th day of September 1984. COPIES FURNISHED: Michael Egan, Esquire ROBERTS, EGAN & ROUTA, P.A. 217 South Adams Street Tallahassee, Florida 32302 Jeffrey H. Savlov, Esquire Post Office Box 10082 Tallahassee, Florida 32302 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 James Linnan, Executive Director Board of Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32202
Findings Of Fact Standard Specifications are a part of every DOT construction contract issued. Subsection 8-1.1 of these standard Specifications provides that a subcontractor shall be recognized only in the capacity of an employee or agent of the Contractor, and his removal may be required by the Engineer, as in the case of any employee (Exhibit 1). Subsection 8-5 thereof provides the Contractor shall assure that all superintendents, foreman and workman employed by him are competent, careful and reliable (Exhibit 3). All contracts entered into by DOT provide for a contract completion time and provide for adjustment to the contract period for delays in construction due to factors beyond the contractor's control which could not be reasonably anticipated at the time bids for the contract were received (Exhibit 4). Requests for extension of contract time are made by the Contractor to DOT, and each request is evaluated on its merits. Often these requests for extension of contract time are made after the contract is completed and the contractor is seeking relief from penalties accrued as a result of his failure to complete the contract in the time allocated. Prior to 1987, all contracts entered into by DOT contained built-in delays based on average weather conditions expected during the contract period. Since mid-1987, contract delays due to expected adverse weather are not included in the contract time, but the period is subsequently adjusted based on daily recording of weather conditions during the contract period. There is no policy by DOT, as suggested by Petitioner, that delays due to weather outside the initial contract period but within the extension granted due to weather delays will not be considered by DOT in granting extensions of contract time. Federal Department of Transportation grants to Florida DOT for road construction in Florida contain a provision that a certain percentage of the contract must be subcontracted to DBE's. This provision is included in the contracts on which the prime contractors submit bids. In order to qualify as a responsible bidder on these contracts, the Contractor must show compliance with the DBE quota for the job at the time his bid is submitted or show that despite good faith efforts the Contractor was unable to meet the DBE goals. DOT certifies individuals and companies which meet the minority business standards needed for certification and maintains a current list of all potential subcontractors who can be used by the Contractor to meet the DBE quota for the specific contract on which the Contractor bids. These DBE subcontractors are not qualified by DOT as capable to perform the work for which they hold themselves out as able to perform. DOT qualifies no subcontractors, either DBE or non-DBE. In the event the Contractor needs to replace a subcontractor for any reason, his application to replace a non- DBE subcontractor is routinely approved by DOT. However, if the Contractor proposes to replace a DBE subcontractor, the Contractor must replace him with another DBE subcontractor (if this is necessary to retain the required DBE participation) and show to DOT that the replacement was for just cause and does not constitute unlawful discrimination. Accordingly, it is more likely to delay a project if a DBE subcontractor is replaced for failure to perform the work for which he subcontracted than if a non-DBE subcontractor has to be replaced for the same reason. Although DOT individually considers each request for extension of contract time, it treats delays resulting from DBE subcontractor performance the same as it treats delays resulting from non-DBE subcontractor performance. As noted in finding 2 above, the contract provides that subcontractors are agents or employees of the Contractor. Accordingly, extensions of time for completion of the contract are not generally granted when the delay is due to the agents or employees of the Contractor. It is the refusal of DOT to treat DBE subcontractors different from non-DBE subcontractors that forms the basis of Petitioner's challenge to this "policy" that extensions of contract time are not granted when the delay was due to the DBE subcontractor failing to comply with his subcontract which failure was "beyond the control" of the Contractor.
The Issue Whether DOT should disqualify Baxter's bid on State Job 55320-3425, because Baxter's uncompleted work might hinder prompt completion of Job No. 55320-3425, or on account of Baxter's not being "responsible" within the meaning of Section 337.11(3), Florida Statutes (1983), or, under Rule 14-22, Florida Administrative Code, on account of Baxter's falsely certifying current capacity?
Findings Of Fact In their prehearing stipulation, the parties agreed that: Baxter submitted the lower bid on Project No. 55320-3425, on August 31, 1983. On September 19, 1983, DOT advised Baxter its bid would not be considered the lowest, responsible bid because of the failure of Baxter's to complete Job Nos. 49010-3535, 50060-3503, 49060-3508, 50030-3522, 50050-3506, 56010-3510, and 50010-3531 within the time allowed by their contract . . . . [E]ach of these projects w[a]s not completed within the allowed contract time and requests for extension of time are pending. The parties further stipulated that DOT's Bid Award Committee voted unanimously to award the job to Solomon and caused notice of intent to award Job No. 55320- 3425 to Solomon to be posted on October 10, 1983. At hearing, the parties stipulated on the record that Solomon is ready, willing and able to perform Job No. 55320-3425, and will perform, if the contract is awarded to Solomon. In Baxter's proposed findings of fact, Baxter concedes that "[t]here is no dispute that SOLOMON is a "responsible bidder?" In their prehearing stipulation, the parties also agreed that the form Certificate of Current Capacity filed by Baxter on August 31, 1983, did not list the status of the contracts it had on hand to which DOT was not a party. SPECIALTY JOB Solomon and Baxter were the only bidders on Project No. 1R-10-3 (71)198-55320-3425 (Job No. 55320-3425). The job involves light grading, installing underdrains and some small drainage structures, covering the underdrains with type III asphalt course, sealing the shoulder joint, miscellaneous asphalt and concrete paving, paving a ditch with concrete, installing guardrails, striping and marking the pavement, and grassing the shoulders on Interstate Highway 10, from Timberlane Road to a point 0.6 miles east of the intersection of I-10 and U.S. 90, a stretch of 6.903 miles, in Leon County. Installation of the underdrains would require about 300 tons of asphalt and some 2800 tons of asphalt would be required to do the whole job, but the production and spreading of asphalt is a relatively minor part of the whole project. Baxter's bid of $936,554.57 was lower than Solomon's by $21,255.63. The work is to be performed within 230 calendar days. TIME OVERRUNS Baxter finished on time at least five projects under contracts DOT let to Baxter in 1981, using all or virtually all of the time allowed to complete Job Nos. 56010-3508, 56020-3508 and 61080-3418, aggregating $2,568,784, but finishing substantially ahead of schedule on Job Nos. 51010-3522 and 53070- 3506, aggregating $384,069. Under contracts DOT let to Baxter in 1982, however, only two projects were finished within the time allowed. In all, DOT let twelve or thirteen contracts to Baxter in 1982. DOT's Exhibit No. 1. Of the 1982 contracts on which Baxter fell behind, DOT cited only five or six 1/ as evidence of Baxter's irresponsibility, in Secretary Pappas' letter of September 19, 1983. LATE STARTS Only one of the 1982 contracts was begun on or before the date specified in the contract as the date time charges were to begin to run. On Job No. 49010-3535 (U.S. 98 or SR 30 in Franklin County) Baxter did not begin work until after the completion date called for in the contract. The contract on U.S. 98 in Franklin County was for $1,170,887.72. On Job No. 50060-3503 (SR 65 in Gadsden County), on which time charges began to run on August 10, 1982, and which was to have been completed within 200 days, Baxter began work on January 7, 1983, which was 235 days after the contract was executed. The contract on SR 65 in Gadsden County was for $744,134.34. The contract DOT awarded Baxter for Job No. 49060-3508 (SR 65 in Franklin County) was for $1,380,270.15. Under the contract, time changes on SR 65 in Franklin County began on September 1, 1982, but Baxter did not begin work until February 23, 1983, which was 250 days after the contract was executed. The SR 65 Franklin County contract between DOT and Baxter contemplated completion of the project within 276 calendar days from the start of work. Both Job Nos. 50030-3522 and 50050-3506 (State Roads 10 and 12 in Gadsden County) were let under an agreement specifying that time charges would begin on November 4, 1982. Baxter started work on the first of these on February 11, 1983, and did not begin the second till well after the date it had agreed to have it finished. Baxter started work on Job 56010-3510 (State Road 20 in Liberty County) on April 13, 1983, about six months after the contract was executed and about four and a half months after time charges began. 1983 Secretary Pappas also cited Job No. 50010-3531 in his letter of September 19, 1983, as one of the jobs on which Baxter's performance had indicated, at least to DOT, Baxter's irresponsibility. This contract was for work on State Road 10 in Gadsden County and was referred to at hearing as the "mini-contract." The contract allowed 30 days for completion of the work and was in the amount of $34,975. Under this contract, time charges began on May 30, 1983, so that work should have been completed by the end of June. Baxter began work on September 9, 1983, more than two months after it had agreed it would finish the job. On the three other DOT jobs that Baxter was to begin in 1983, Job Nos. 53030-3521 (U.S. 231 in Jackson County), 61040- 3515 (SR 79 in Washington County), 54030-3507 (SR 19 in Jefferson County) , Baxter started work 26, 44 and 81 days late respectively. DELINQUENCY DISPUTED Whenever a contractor falls behind to the point that he has completed 20 percent less than he projected he would have on his progress chart and the amount he has completed expressed as a percentage of the whole is 20 points or more less than the amount of time elapsed expressed as a percentage of the total time allowed, DOT issues a preliminary notice of delinquency. The contractor has 15 days thereafter in which to request extensions of time. DOT may grant extension requests that render the contractor no longer delinquent, or it may issue a final notice of delinquency. Only if the contractor fails to file timely a petition for administrative proceedings does the "final" notice become final in law. Otherwise final agency action must await the outcome of proceedings pursuant to Section 120.57, Florida Statutes (1983). DOT has issued final notices of delinquency to Baxter with respect to both jobs on SR 10 in Gadsden County, and the jobs on SR 79 in Washington County, SR 19 in Jefferson County, State Road 20 in Liberty County, State Road 10 in Gadsden County, State Road 65 in Franklin County, State Road 65 in Gadsden County, and U.S. 98 in Franklin County. Since 1973, Baxter has received more final notices of delinquency from DOT than any other road contractor. As of final hearing, there was no other road contractor in the Tallahassee residency with as many as two jobs uncompleted as of the date time expired. With respect to each contract as to which DOT has issued a final notice of delinquency to Baxter, Baxter has filed requests for extensions of time. Some of these requests were granted. Others were not. If all of them had been granted, final notices of delinquency would not have issued. Baxter has also timely filed for formal administrative proceedings as to each final notice of delinquency directed to Baxter. At least one of these was scheduled for final hearing as early as August 5, 1983, but was, on Baxter's application, enjoined by court order. Baxter's Asphalt and Concrete, Inc. v. State of Florida, Department of Transportation; State of Florida, Division of Administrative Hearings; and R. T. Benton, II, No. 7-83-123 (Fla. 14th Cir.; Aug. 4, 1983). The parties stipulated that they have since agreed that the injunction be dissolved, although no order dissolving it has been entered. In arriving at the times specified in DOT road contracts, DOT staff estimates the number of work days necessary to complete the project, then multiplies by 1.825, on the assumption that the road contractor will only be able to work four days a week, fifty weeks a year. On paving jobs, considerable additional time is built into the estimates to allow contractors to bid on and schedule several jobs. DOT allows time extensions nevertheless for inclement weather, when the weather interferes with the controlling items of work, and also allows time extensions for certain unforeseen problems beyond the contractor's control. At hearing in the present case, Baxter made a colorable showing of a design problem on the SR 20 job in Liberty County, of a shortage of "friction course one materials" throughout 1982 and the first half of 1983, and of a shortage (of much shorter duration) of a chemical used to recycle milled asphalt, called HMA. Even if established, these claims would not excuse Baxter's lateness on all of the contracts mentioned in the Secretary's letter of September 19, 1983. For example, the evidence showed work had not progressed to the point that Baxter could have used the HMA during the time of the shortage. Baxter has even contended that it is not delinquent on jobs it did not begin until after the date by which Baxter had agreed to have finished. The evidence showed, however, that Baxter was delinquent in fact on these and other jobs. The specifications for Job No. 55320-3425 included the 1982 Edition of the Standard Specifications for Road and Bridge Construction, Section 2-11 of which provides that a bidder may be disqualified on account of "Uncompleted work which in the judgment of the Department might hinder or prevent the prompt completion of additional work if awarded." Section 2-6 provides for rejection of qualified or conditional bids. ASPHALT PRODUCTION At all pertinent times, Baxter has had an asphalt plant in operation in Marianna, Florida (Plant No. 1). In the summer of 1982, Baxter erected a second asphalt plant in Liberty County. (Plant No. 2) After failing to obtain rezoning for a Gadsden County site, Baxter caused a third asphalt plant to be built in Franklin County. (Plant No. 3) By February of 1983, Baxter had obtained the requisite environmental permits for all three plants, although technical problems at Plant No. 3 were not overcome until later. Baxter can operate two, but not all three, of these plants simultaneously. The capacity of the Marianna plant is such that all the asphalt necessary for all the jobs Baxter contracted with DOT could have been produced there in time for Baxter to perform the DOT contracts on time. Baxter had other uses for some of its asphalt, however. Among them was a $4,000,000 job in Alabama in 1982 which Baxter finished more than 100 days early. The fraction of Baxter's total production used on DOT jobs varied from .02 percent in March of 1982, when Baxter produced 10,769.9 tons, and 7.31 percent in June of 1983, when Baxter produced 16,109.26 tons, to 97.96 percent in August of 1982, when Baxter's total production was 37,846.72 tons and 92.88 percent in April of 1983, when Baxter produced 13,210.34 tons. CAN DO William D. Baxter, who owns petitioner, and Louis W. Seay, Jr., petitioner's vice-president since 1979, are capable and successful businessmen. According to J. Vern Williams, a C.P.A. familiar with Baxter's operations, Baxter is very well managed, with the possible exception of the accounting department. Mr. Baxter began with a pick-up truck and a hot pot, and his company now has some $10,644,000 in heavy equipment and transportation equipment (original cost). If anything, Baxter's equipment inventory is larger than necessary. Baxter could perform Job No. 55320-3425 without buying or leasing any heavy equipment other than a trencher. Bonding companies reportedly stand ready to write an additional $14,000,000 in bonds for Baxter's. Its working capital and its capitalization generally are adequate for what it has undertaken. Among its 150 employees are 15 who have been with Baxter for ten to fifteen years, including H. H. Barber, the general superintendent, and Timmy Jones and Spud Berry, each of whom has worked as an asphalt superintendent for ten years. CHOSE NOT TO Baxter's managers deliberately postponed work on DOT jobs closer to the sites chosen for Plants Nos. 2 and 3 (including the Gadsden County site originally chosen for Plant No. 3), in order to avoid the costs of transporting asphalt the longer distances from Plant No. 1, even when it was uncertain when Plant Nos. 2 and 3 would go into production. They also decided not to purchase asphalt from any other producer closer to the job sites, as a means of performing timely under the DOT contracts mentioned in Secretary Pappas' letter of September 19, 1983. Notwithstanding the number of DOT contracts Baxter undertook to perform and notwithstanding the extent to which work fell behind on many of them, Baxter never had more than a single asphalt crew at work at any one time on the whole group of jobs listed in Secretary Pappas' letter of September 19, 1983. Since DOT indicated its intention to award Job No. 55320-3425 to Solomon, Baxter has made significant progress on the jobs listed in Secretary Pappas' letter. By January 18, 1984, it had completed four of them, all behind schedule, and was nearing completion on SR 65 in Gadsden County. Work on SR 65 in Franklin County was behind schedule and about one quarter completed. Delays of this kind cause problems for DOT, whose employees are permanent and full-time. Months in advance, DOT schedules at least one employee on each job site, for at least part of each day for the duration of the job. These schedules are based on the road contractors' commitments under the contracts DOT lets and on the progress charts they file. Inefficient use of DOT staff time is a common result when road contractors fail to perform work as scheduled. DOT schedules supervisory and testing personnel for 500 to 600 jobs annually. DOT WAFFLES On January 25, 1984, DOT issued a corrected notice of intent to award Job No. 59010-3514 to Baxter. This $594,174.56 asphalt paving job in Wakulla County will require significantly greater quantities of asphalt than Job No. 55320-3425, at issue in these proceedings. None of the other bidders on Job No. 59010-3514 protested the award to Baxter within the time allowed. ERRONEOUS CERTIFICATE Until recently, Baxter's consistent practice has been to omit contracts with parties other than DOT on the certificate of current capacity filed with bids on DOT jobs. Mr. Seay testified he had not realized that contracts with parties other than DOT were required to be listed. On the form certificate filed on August 31, 1983, in conjunction with its bid on Job No. 55320-3425, Baxter failed to report about $500,000 in uncompleted work under private contracts, while reporting $5,478,000 in uncompleted work for DOT. At the time, Baxter had approximately $22,000,000 in unused capacity. Perhaps this is why Peter J. White, Director of DOT's Division of Construction testified that there was no material irregularity in the bid papers. Petitioner submitted Baxter's proposed findings of fact and respondent filed a proposed recommended order which the intervenor adopted. Proposed findings have been adopted, in substance except to the extent they have been deemed unsupported by the weight of the evidence, immaterial, subordinate or cumulative.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That DOT award Job No. 55320-3425 to Solomon. DONE and ENTERED this 30th day of March, 1984, in Tallahassee, Florida. ROBERT T. BENTON II Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of March, 1984.
Findings Of Fact DOT is an agency of the State of Florida responsible for the construction and maintenance of roads designated as part of the State Highway System. Clark is a road and bridge construction company located in Dozier, Alabama, and certified to bid on DOT contracts. On January 23, 1991, Clark submitted its bid on DOT Project No. 61530- 3601 for the construction of two adjacent bridges (Holmes Creek Bridge and Holmes Creek Relief Bridge) located in Washington County, Florida. On April 4, 1991, DOT and Clark entered into a contract for this project. The construction on the project was to take 400 contract days. On December 8, 1991, DOT advised Clark of its intention to declare Clark delinquent for unsatisfactory progress on the project. The contract required Clark to submit a construction schedule for approval by DOT. Under its approved construction schedule, Clark anticipated that it would commence its pile driving activity on the tenth day of the contract. Clark also proposed beginning the superstructure 40 days after beginning the substructure. The contract provides in part as follows: 8-7.3.2 . . . The Department may grant an extension of contract time when a controlling item of work is delayed by factors not reasonably anticipated or foreseeable at the time of bid. Such extension of time may be allowed only for delays occurring during the contract time period or authorized extensions of the contract time period. * * * Delays in delivery of materials or competent equipment which affect progress on a controlling item of work will be considered as basis for granting a time extension if such delays are beyond the control of the Contractor or supplier. * * * 8-8.2 Regulations Governing Suspension for Delinquency: Under the relevant rule provisions, a contractor is delinquent when unsatisfactory work progress is being made under these conditions: * * * (3) The allowed contract time has not expired and the percentage of dollar value of completed work is 15 percentage points or more below the dollar value of work which should have been completed according to the approved working schedule for the project. After falling 15 percent behind, the delinquency continues until the percentage points of the dollar value of completed work is within five percentage points of the dollar value of work which should have been completed according to the approved working schedule for the project. The contract required Clark to procure pilings for the project from a certified prestressed concrete manufacturer. The concrete mix design used by the prestress manufacturer had to be approved by DOT before construction could begin. At the time Clark prepared its bid, there were no preapproved prestressed concrete manufacturers in Florida or Alabama in the reasonable vicinity of the project. In preparing its bid, Clark contacted Sherman International (Sherman), a prestressed concrete manufacturer with headquarters in Birmingham and a plant in Mobile, Alabama. Immediately upon being awarded the contract, Clark notified DOT that Sherman would be its prestress supplier. Sherman had experience in fabricating prestressed products for states other than Florida and therefore believed it would not have a problem meeting Florida's certification requirements. The certification process requires inspection and approval by DOT officials of the manufacturer's equipment, material suppliers, plant operations, concrete mix, etc. The certification process also involves the production and pouring of test batches which must be reviewed by DOT officials who note problems with the product and direct resolution of the problems. The certification process involves a minimum of 28 days to allow the test batches to cure. After Sherman went through two unsuccessful 28-day curing periods in its effort to meet DOT approval, it retained an expert more familiar with DOT procedures and requirements and was finally able to obtain DOT approval on July 10, 1991. DOT's district engineer recognized that Clark reasonably would have anticipated that Sherman would be approved without delay. Neither Sherman nor Clark had reason to anticipate the approval of Sherman would take an extended length of time. Due to the delays in the approval of Sherman, Clark was unable to begin pile driving until August 14, 1991, the 98th day of the contract. Under the contract, piling had to be driven to depth until it met a specified bearing capacity, but still maintained the necessary height above ground to support the superstructure. The work on the foundation began by driving test piles. Once the test piles were driven, DOT was responsible for determining the order lengths for the piling. The order lengths were supposed to be long enough so that the piles would reach bearing and also maintain the specified height, above ground. Immediately upon commencing pile driving, Clark ran into problems because the piles were not long enough to be driven to bearing. The piles which did not meet bearing had to be spliced and redriven until they reached bearing. The contract contemplated that as many as seven splices would be required, 2 on the relief bridge and 5 on the creek bridge. The contract therefore identified splicing as an item for which the bidders were required to submit a unit price. In fact, on the creek bridge, 43 of the 96 piles had to be spliced. DOT was responsible for determining the additional pile lengths for the splices and it took DOT at least a week to make the determination once it realized a splice was required. Sherman had to manufacture the splices piecemeal as the orders came in to do so. Once manufactured, the pile splice had to cure for seven days then be shipped to the contractor. The contractor then affixed the pile splice to the original piling by the use of dowels and epoxy which had to cure for 48 hours. Construction of the substructure consisted of driving the piles, splicing and pouring concrete caps on which the bridge superstructure would rest. Before construction of the superstructure (decks) of the bridge could begin, pile caps had to be constructed. It took anywhere from two weeks to two months between the time the parties discovered that a pile or group of piles would have to be spliced and the time the spliced pile could be redriven. The pilings are constructed in clusters known as bents. Every bent on this project required splicing and therefore, construction of every bent was delayed. Before Clark could begin construction of the superstructure, it was necessary to have a consecutive series of bents completed including the caps. Even though Clark anticipated that it would commence construction on the superstructure 40 days after beginning the substructure, Clark was unable to start on the superstructure until 92 days after it started the pile driving operations because of the delays caused by the excessive splicing. Clark expected to be able to begin the superstructure on one end of the bridge while it was working on the substructure at the other end. However, Clark's planned, efficient progress was impeded because of ongoing driving operations of spliced pilings. Clark could not pour the caps while pile driving was going on within 100 feet of the bent where caps were to be poured. Clark continued on with its pile driving while it ordered splices for the previous bents. As soon as Clark was able to pour caps it did so and as soon as there were a sufficient number of completed successive bents available, Clark began work on the superstructure. Clark requested time extensions due to the delays, but the requests were denied. Clark ultimately was delayed in the progress of its work due to the unanticipated pile splices which exceeded the estimated quantity by more than 800 percent. DOT granted Clark nine additional contract days as the result of a supplemental agreement which did not include any additional time for the delays due to the excessive splicing. At the time of the notice of delinquency, Clark requested a 45-day extension of time due to the splicing. By a letter dated December 4, 1991, the DOT project engineer acknowledged that Clark was entitled to some time extension due to the splicing, but DOT proposed only a 9-day extension. In fact, no such extension was ever granted. DOT determined Clark delinquent on day 210. According to the engineer's weekly summary, on day 210, the percentage of the dollar value of completed work was 39.5 percent and the total allowed number of contract days was 403. By DOT's own calculations, if Clark had been given the nine days proposed for the supplemental agreement and the nine days suggested in the project engineer's letter of December 4, 1991, the project would have only been delinquent by 17 percent. It is not necessary for the trier of fact herein to determine the exact number of days which should have been granted for the pile splicing. It is enough to find that the 9 days suggested by DOT are inadequate and that the appropriate figure, based on the engineer's progress notes and reports, is at least twice that. DOT's witnesses offered explanations of why Clark was entitled to no extension in contract days because of the pile splices. However, their suggestions was beyond the realm of credibility in light of the actual extent of work and time required. Credibility determinations being within the exclusive province of the Hearing Officer, it is determined that DOT's testimony regarding the reasons for DOT's refusal to extend the contract time to reflect the inordinate number of pile splices is simply not credible or entitled to any weight. Additionally, neither of the main DOT witnesses had adequate knowledge of this specific project. If DOT had granted Clark an adequate number of days extension for the pile splices, that number plus the additional 9 days would result in an adjusted number of contract days of over 430. If Clark were granted the appropriate number of additional contract days, the percentage of dollar value of completed work would be less than 15 percentage points below the dollar value of work to be completed according to the contractor's schedule. This is calculated as follows: 210/430=48.6 percent. (Actual work completed of 39.5 percent or uncompleted percent of total contract amount of 60.5 percent.) 60.5-48.6=11.9 percent.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the DOT enter a Final Order determining that Clark is not delinquent and dismissing the delinquency determination against Clark Construction Co., Inc., on State Project No. 61530-3601. DONE and ENTERED this 14th day of July, 1993, in Tallahassee, Florida. DIANE K. KIESLING 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 14th day of July, 1993. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 92-1592 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Department of Transportation Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-5(1-5); 15(8); 18(8); 32(17); and 34(19). Proposed findings of fact 7-14, 19, 20, 22-31, 33, 35-37, and 40 are subordinate to the facts actually found in this Recommended Order. Proposed finding of fact 6 is unnecessary. Proposed findings of fact 16, 38, 39, and 42 are unsupported by the credible, competent and substantial evidence. Proposed findings of fact 17, 21, 41, and 43 are irrelevant. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Clark Construction Co., Inc. Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 2-6(9-13); 8-13(14-19); 14(6); 15(7);. 16-28(20-32); 30-33(33-36); 34(8); 35(37); 36-40(39-43); and 46(38). Proposed findings of fact 1, 29, 41, 42, and 45 are subordinate to the facts actualloy found in this Recommended Order. Proposed findings of fact 7 and 47 are unsupported by the credible, competent and substantial evidence. Proposed findings of fact 43 and 44 are unnecessary. COPIES FURNISHED: Reynold D. Meyer Genie L. Buckingham Assistant General Counsels Department of Transportation 605 Suwannee Street, MS-58 Tallahassee, FL 32399-0458 Mary Piccard, Attorney at Law Cummings, Lawrence & Vezina, P.A. 1004 DeSoto Park Drive P.O. Box 589 Tallahassee, FL 32303-0589 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0458
The Issue The issue for determination is whether the Intervenor was properly qualified to complete the construction project contemplated by Invitation to Bid No. DCF-03211120 (ITB)
Findings Of Fact The Department issued the ITB for a construction project, involving the re-roofing of Buildings 1 and 2 at 12195 Quail Roost Drive, Miami, Florida. The ITB was published in the Florida Administrative Weekly on December 24, 2008. The ITB outlined the terms and conditions for responsive bids. The ITB indicated, among other things, that all sealed bids were required to be submitted at 401 NW 2nd Avenue, S-714, Miami, Florida 33128, by January 15, 2009, at 2:00 p.m. Leo Development submitted its sealed bid at the location and by the date and time, in accordance with the ITB. FBM submitted its sealed bid by the date and time, but at a different location—the offices of Russell Partnership— contrary to the ITB. All other bidders submitted their sealed bids at the location and by the date and time, in accordance with the ITB. The Department’s architect of record on the project, Russell Partnership, and one of its principals, Terry Holt, performed the examination and bid tabulation. Mr. Holt, a registered architect for approximately 36 years, was very familiar with the procurement process and had extensive experience in determining whether a bidder was licensed by DBPR in order to complete the work contemplated for a project. The sealed bids submitted at 401 NW 2nd Avenue, S-714, Miami, Florida 33128, on or before January 15, 2009, at 2:00 p.m. were as follows: All Time Roofing, with a bid of $73,400.00; Taylor Roofing, with a bid of $59,708.00; Leo Development, with a bid of $54,109.00; John W. Hunter Enterprises, with a bid of $75,000.00; and Trintec Construction, with a bid of $75,500.00. 9. FBM’s bid was $71,600.00. Mr. Holt determined that Leo Development was the lowest bidder. FBM’s bid was not considered as being non-responsive. Additionally, Mr. Holt reviewed Leo Development’s website to ascertain as to whether any factors existed to disqualify Leo Development. The website failed to reveal any basis for Mr. Holt to disqualify Leo Development. Having discovered no basis to disqualify Leo Development as the lowest bidder, Mr. Holt submitted the list of bidders, with their bids, to Bill Bridges, the Department’s senior architect and a registered architect for approximately 25 years. Mr. Bridges was the person responsible for oversight of the ITB process. As Leo Development was the lowest bidder, Mr. Bridges reviewed the website of the Florida Department of State, Division of Corporations (Division of Corporations) in order to ensure that Leo Development was registered with the Division of Corporations. His review revealed that Leo Development was a fictitious name properly registered to Leo Premier Homes, LLC. Further, Mr. Bridges performed a license background check on Leo Development in order to ensure that Leo Development was licensed by DBPR. Mr. Bridges reviewed DBPR’s website, which revealed that Frank Anthony Leo was the owner of Leo Development and that the following licenses were issued by DBPR: Qualified Business Organization License #QB50182 to Leo Premier Homes, LLC, Leo Development; Certified Building Contractor License #CBC1254723 to Frank Anthony Leo, Leo Development; and Certified Roofing Contractor License #CCC1328402 to Frank Anthony Leo, Leo Development. Mr. Bridges confirmed and was satisfied that Leo Development was properly licensed to complete the work contemplated by the ITB. Mr. Bridges recommended that Leo Development be awarded the ITB as the lowest responsive bidder. FBM filed a written protest (Initial Protest) of “its exclusion from the bid tabulation.” The Department issued a Final Order Rejecting Bid Protest (Final Order) on February 19, 2009. The Final Order provided in pertinent part: FBM was determined non-responsive because the bid was not presented at the time and place specified in the ITB. . . FBM’s formal written protest alleges that FBM, on the date of the bid submission/bid opening, was misdirected as to the location of the bid opening. . . . FBM’s protest must be rejected because it does not state a claim that could entitle it to relief. . . In the context of a bid protest proceeding . . . the protest must adequately allege that the protestor could obtain the contract award or otherwise benefit should the protest be successful. . . Assuming all of FBM’s factual allegations are true and that those facts entitle FBM to have its bid considered, FBM would still be entitled to no relief. Had FBM’s bid been accepted, FBM would have been the third lowest of six bidders. FBM’s formal protest does not allege that the lowest and second lowest bids were deficient in any manner. FBM was not injured in fact, because it still would not have received the contract award. Accordingly, FBM’s formal written protest is REJECTED. No appeal was taken by FBM of the Department’s Final Order rejecting FBM’s Initial Protest. Among other findings, the Department’s Final Order on FBM’s Initial Protest found that, taking FBM’s allegations as true, FBM would have been the third lowest bidder. FBM would not have been the second lowest bidder. The parties agree that the holder of a certified building contractor’s license and a certified roofing contractor license would be permitted to complete the work contemplated by the ITB. Subsequent to the opening of the sealed bids, Leo Premier Homes, LLC, registered the fictitious name of Leo Roofing & Construction with the Division of Corporations. After the registration with the Division of Corporations and after the Department’s Final Order, licenses were issued by DBPR. As to the licenses issued, the record of the instant case provides2: Qualified Business Organization License #QB50182 to Leo Premier Homes, LLC, Leo Roofing & Construction; Certified Building Contractor License #CBC1254723 to Frank Anthony Leo, Leo Roofing & Construction; and Certified Roofing Contractor License #CCC1328402 to Frank Anthony Leo, Leo Roofing & Construction. The licenses reflect the same license numbers, as before, and only the fictitious name is different on each license to indicate Leo Roofing & Construction.3 The contract for the ITB was entered into between the Department and Leo Development. In these proceedings, the Department incurred costs in the amount of $1,311.05.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services enter a final order dismissing FBM General Contracting Corporation’s Protest and awarding costs in the amount of $1,311.05 to the Department of Children and Family Services. DONE AND ENTERED this 21st day of August 2009, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of August, 2009.
