The Issue The issues to be resolved on this occasion concern the question of whether the Petitioner or Intervenor is the lowest responsible bidder in several State of Florida, Department of Transportation road projects in which the private parties offered competing bid proposals.
Findings Of Fact The State of Florida, Department of Transportation advertised for competitive bids related to state road building projects, Nos. 72220-3510, 72220-3511, and 72220- 3512, Duval County, Florida, which will be subsequently referred to as Projects 3510, 3511, and 3512, or together as the "Projects." In response to the advertisement, bids were received effective December 5, 1984. Petitioner Barco, was the apparent low bidder on all projects and the Intervenor was the second low bidder. Through its review process, the Department of Transportation determined that the Barco bid was "non-responsive" and notified Barco of the department's intent to deny contract awards to Barco. The department also made known its intention to grant the contracts for the subject projects to Wiley N. Jackson Company. In view of this proposed agency action, Petition sought timely consideration of this adverse decision by requesting a Section 120.57(1), Florida Statutes (1984) hearing. The Intervenor Jackson was allowed to participate in the case as a substantially affected party. The Jackson petition for intervention was timely filed. Related to the projects at issue, and in furtherance of the requirements of Section 339.0805, Florida Statutes (1984), the Department of Transportation enacted rules which were designed to assist women and socially and economically disadvantaged persons to receive part of the work identified in the job specifications. The rules are found in Chapter 14-78, Florida Administrative Code (1984). The aforementioned statutory provision and rules chapter contemplate that job participation by the Disadvantaged Business Enterprises, known as "DBEs," shall be based upon assigning a percentage of each project for the benefit of the DBEs. In essence it is a percentage of the dollar volume of the contract amount which is set aside for the benefit of the DBEs. In the cases under consideration, those goals were as follows: PROJECT PERCENTAGE OF DOLLAR VOLUME TO BE ASSIGNED TO DBEs 3510 10 percent 3511 12 percent 3512 15 percent As envisioned by Chapter 14-78, Florida Administrative Code (1984), it was incumbent upon the bidders in the projects in dispute, to either comply with the goals established for DBEs or in the alternative to demonstrate that a good faith attempt had been made at gaining such compliance. Good faith compliance is measured in view of specific criteria and the basic impression of the department on the question of whether the quality, quantity and intensity of the efforts at gaining compliance were sufficient to allow a finding that the efforts were in fact in good faith. See Rule 14-78.03(2)(b)4.b., Florida Administrative Code (1984), infra. In these projects four companies offered bids. The dollar amount of those bids were as follows: PROJECT 3510: Barco $1,566,284.66 Jackson $1,794,878.40 Dickerson Florida Inc. $2,375,747.66 Anderson Contracting Co., Inc. $2,485,576.79 PROJECT 3511: Barco $1,721,294.99 Jackson $2,090,431.29 Anderson Contracting Co., Inc. $2,708,632.27 Dickerson Florida, Inc. $2,958,909.03 PROJECT 3512: Barco $1,956,065.94 Jackson $2,320,418.03 Anderson Contracting Co. $2,852,238.85 Dickerson Florida, Inc. $3,110,336.75 Through their bids, each of the bidders offered to comply with the DBE participation goals to the following extent: PROJECT 3510: PERCENT BIDDER ANTICIPATED DBE UTILIZATION BY DBE goal 10 percent Barco Jackson Dickerson Anderson 0 percent 10.2 percent 10 percent 4.6 percent PROJECT 3511: DBE goal 12 percent Barco 0 percent Jackson Dickerson 12.5 percent 12 Anderson 6.59 percent PROJECT 3512: DBE goal 15 percent Barco 0 percent Jackson 15.1 percent Dickerson 15 percent Anderson 12.65 percent This depiction demonstrates that Jackson and Dickerson complied with the DBE goals in each contract, whereas Anderson offered partial compliance with the goals and Barco offered no compliance with those goals. Consequently, if Barco were to be successful in gaining a contract to construct theme projects, it must demonstrate that its attempts at achieving the DBE participation goals were in good faith within the meaning of Rule 14- 78.03(2)(b)4., Florida Administrative Code (1984), which states in pertinent part: . . . award of the contract shall be conditioned upon submission of the DBE and WBE participation information with the bid proposal and upon satisfaction of the contract goals or, if the goals are not met, upon demonstrating that good faith efforts were made to meet the goals. Measurement of the attempt at compliance and the decision on the adequacy of that attempt is pursuant to Rule 14- 78.03(a)(b)4.b., Florida Administrative Code (1984), which states: b. In evaluating a contractor's good faith efforts, the Department will consider: Whether the contractor, at least seven days prior to the letting, provided written notice by certified mail, return receipt requested, or hand delivery, with receipt, to all certified DBEs and WBEs which perform the type of work which the contractor intends to subcontract, advising the DBEs and WBEs of the specific work the contractor intends to subcontract; 2) that their interest in the contract is being solicited; and 3) how to obtain information about and review and inspect the contract plans and specifications. Whether the contractor selected economically feasible portions of the work to be performed by DBEs or WBEs, including where appropriate, breaking down contracts or combining elements of work into economically feasible units. The ability of a contractor to perform the work with its own work force will not in itself excuse a contractor's failure to meet contract goals. Whether the contractor provided interested DBEs or WBEs assistance in reviewing the contract plans and specifications. Whether the DBE or WBE goal was met by other bidders. Whether the contractor submits all quotations received from DBEs or WBEs, and for those quotations not accepted, an explana- tion of why the DBE or WBE will not be used during the course of the contract. Receipt of a lower quotation from a non-DBE or non- WBE will not in itself excuse a contractor's failure to meet contract goals; provided however, a contractor's good faith efforts obligation does not require a contractor to accept a quotation from a DBE or WBE which exceeds the lowest quotation received from any subcontractor by more than 1 percent. Whether the contractor assisted interested DBEs and WBEs in obtaining any required bonding, lines of credit, or insurance. efforts. Whether the contractor elected to sub- contract types of work that match the capabi- lities of solicited DBEs or WBEs. Whether the contractor's efforts were merely pro forma and given all relevant circum- stances, could not reasonably be expected to produce sufficient DBE and WBE participation to meet the goals. Whether the contractor has on other contracts within the past six months utilized DBEs and WBEs. This list is not intended to be exclusive or exhaustive and the Department will look not only at the different kinds of efforts that the contractor has made but also the quality, quantity and intensity of these The requirements of Rule 14-78.03(2)(b), Florida Administrative Code (1984), pertaining to achievement of DBE goals and the necessity to establish good faith efforts in the absence of that compliance, were provided to Barco with the bid packages for the several projects. In preparing its bid submission, Barco solicited quotations from a number of subcontractors, associations and clearing houses, through the use of a solicitation letter. The date of that letter is November 20, 1984. By this correspondence reference is made to the several job numbers and a description is given of the general classes of work sought for quotation. A replica of this correspondence was attached with each of the bid blanks for the three projects in question. Forty-three companies were solicited through the letter, with twenty-seven of those being certified DBEs, eight certified WBEs, and eight non- DBEs. All solicitations were through certified mail return receipt requested. Evidence of the solicitations, as shown in the bid blanks related to the three projects, was in the way of summary sheets which listed each of the companies solicited, identifying that those companies were solicited through return receipt mail. These sheets also indicate that four companies did not and further those other quotations are listed as being the prices used in preparing the bid submission on the part of Barco. That form does not designate the names of those companies from whom Barco indicates it received the lower quotes. In the bid blank for Project 3511, which is Petitioner's exhibit number 2, a similar Barco quotation form for DBE subcontractors may be found. In this instance, in addition to the several DBEs who gave quotations in the Project 3510, a quotation was also received from J. E. Hill, DBE. Those quotations are listed together with the specific categories of work and then additional prices are quoted related to unidentified contractors, which additional quotations are lower than the quotations received from the DBE subcontractors and were used in preparing the bid submission. The bid blank related to Project 3512 also contains a quotation from DBEs on a form by the Petitioner. This lists quotations from the same four DBEs as are set forth in the form for Project 3511. As in the instance of that prior project, Project 3512, sets forth prices received from unidentified subcontractors which are lower than the prices quoted by the DBE subcontractors. Again Barco utilized the quotes announced by those unidentified subcontractors when establishing its bid submission. None of Barco's bid blanks for the several projects at issue contained actual written quotations or recorded telephone quotations made by the aforementioned DBEs, non-DBEs, WBE subcontractor, materialmen or suppliers who offered quotations on those projects. BARCO did not submit any of the quotations received from DBEs with its bid blanks, notwithstanding the availability of some of those DBE quotations at the time of the submission of the bid blanks. In response to a request by the Department of Transportation subsequent to the submission of its bid blanks, Barco provided that information. Those materials may acknowledge receipt of this mail. Contrary to this representation, only three companies failed to acknowledge receipt of the mail. The summary sheets also indicated whether Barco received written or phone contact from those companies solicited. On the summary sheets Barco indicates whether the solicitation letters had been responded to in writing or by phone by placing a check mark in a column denoting a written or telephonic response. Copies of the bid blanks related to the several projects beginning with 3510 through 3512 in series may be found as Petitioner's exhibits numbers 1 through 3 admitted. Petitioner's exhibit number 12 is the return receipt information for the several projects as bid by Barco. Although this exhibit was not submitted with the bid blanks for the projects in question, it clarifies concerns which the Department of Transportation has about the information set forth in the summary sheets referred to in this paragraph. In effect, it vouches for the prima facia information set forth in those summary sheets. All told, as it relates to each of the projects, four DBEs offered quotes on some or all of the projects. Of these only one DBE was offering its quotation in response to the solicitation letter as described before. In Petitioner's exhibit number 1 pertaining to Project 3510, there is a form utilized by the Petitioner which indicates the general category, name of the DBE or WBE subcontractor and the price quoted by those subcontractors for the selected categories of work. Princess Construction was the WBE who gave the quotation. The other three named subcontractors are DBE subcontractors. Princess Construction's quotations were also depicted on that form as being the lowest price received and as a consequence, Barco points to this quotation in its satisfaction of WBE goals for this project. On the same form opposite the names of the DBE subcontractors, that is E. Thompson, B. Griffith, and Oglesby and Hug, other prices are quoted as being the lowest prices received be found as Petitioner's exhibit number 11, containing quotations which predate the bid opening and postdate the bid opening. The quotations set forth in the several bid blanks as discussed in the previous paragraphs are found in those materials. Petitioner's exhibit number 11 verifies the amount of quotations of the four DBEs set forth in the bid blanks and identifies those companies whose quotations Barco used in preparing its bid responses. The companies used were non- DBEs, with the exception of Princess Construction. Those responses as set forth in Petitioner's exhibit number 11 do not contain quotations which are the product of additional solicitations which might have occurred subsequent to the time of the bid opening. While Barco fails to specifically mention the fact, there is greater than a 1 percent differential between the DBE quotations and the non-DBE quotations which were used in the several bid submissions. The quotations by the non-DBEs were lower by more than 1 percent. In view of that circumstance, Barco felt that it was appropriate to use the non-DBEs quotations as envisioned by Rule 14- 78.03(2)(b)4.b.v., Florida Administrative Code (1984). This perception by the Petitioner relates to that portion of the rule which says: . . . a contractor's good faith efforts obligation does not require a contractor to accept a quotation from a DBE or WBE which exceeds the lowest quotation received from any subcontractor by more than 1 percent. Had Barco chosen not to avail itself of the opportunity set forth in that rule, it had received sufficient DBE quotes to comply with all of the goals set forth in the several projects. In making solicitations Barco did not solicit all available DBEs set forth in the Department of Transportation's Directory of certified DBEs and WBEs. See Petitioner's exhibit number 10. Availability refers to the type of work and the geographical area where those DBEs would be willing to do their work. An example of the lack of solicitation would be the concrete work in these jobs in which thirty-three DBEs were listed in the directory and only twelve were solicited by Petitioner. Having examined the nature of the projects, Barco, through its management, determined to limit its solicitations to a portion of the available DBEs. This decision can be described as a business judgment on the part of Barco based upon prior experience with DBEs, their location and anticipated costs of mobilization for DBEs. In making decisions on the award of the contract, such as contemplated in the projects in dispute, the Department of Transportation conducts a review of the bid blanks at various levels within the department. One of those reviews is conducted by the Good Faith Efforts Review Committee. Its function is to ascertain whether the bids submitted comply with the requirements of Chapter 14-78, Florida Administrative Code (1984). This committee makes a recommendation to the department's Technical Review Committee. Specifically, the recommendation made to that next level of review is one which comments on whether the bidders have complied with the requirements of Chapter 14- 78, Florida Administrative Code (1984). The Technical Review Committee is not bound by the finding of the Good Faith Efforts Review Committee. In turn the Technical Review Committee makes known its recommendation on the contract award to the department's Awards Committee. The Awards Committee, being a higher level in the hierarchy, can reject the recommendation of both the Good Faith Efforts Review Committee and the Technical Review Committee on the topic of compliance with requirements of Chapter 14- 78 Florida Administrative Code (1984). Finally, the Awards Committee makes its recommendation to the Department of Transportation Secretary, who as agency head has the power to accept or reject the recommendation of all subordinate levels of review on the topic of compliance with Chapter 14-78, Florida Administrative Code (1984). Ordinarily the recommendations as to compliance with Chapter 14-78, Florida Administrative Code (1984) as it is passed from one level of review to another is not disturbed. In due course, following the bid letting or opening on December 5, 1984, the Good Faith Efforts Review Committee examined the bid submissions related to the three projects as provided by Barco. As may be seen in the Petitioner's composite exhibit number 5, the recorded findings of the Good Faith Efforts Review Committee, related to the Barco bids, the initial recommendation was to award Barco contracts on all projects. In the comments sections, reference is made to the fact that Barco submitted a copy of the solicitation letter which included the classes of work and enclosed copies of the appropriate quantity sheets. The comments sections also reference the fact that Barco had solicited forty-three addressees, including the twenty-seven DBEs and the fact that Barco indicated if a return receipt was received. The comments sections note that Barco did not provide copies of the certified mail receipts. The comments sections relate that the contractor only received three DBE bids in Project 3510 and four DBE bids in the other projects and the related fact that the contractor indicates receiving lower bids from non-DBE subcontractors in those categories of work. In the comments sections it is noted, parenthetically, that those non- DBE subcontractors were not specified. Finally, the comments sections indicate that the DBE bids, i.e. quotes, exceeded the lower bids/quotes by more than 1 percent. The Good Faith Efforts Review Committee in its initial recommendation favoring the award of the contracts to Barco, was giving a liberal interpretation to the nine criteria for review of the good faith efforts at compliance with DBE contract goals. See Rule 14-78.03(2)(b)4.b., Florida Administrative Code (1984), supra. This recommendation was then forwarded to the Chairman of the Technical Review Committee. Given the fact that other bidders on the projects had met the department's goals related to utilization of DBE subcontractors, Mr. Potts, Chairman of the Technical Review Committee discussed this circumstance with Mr. Hilliard, a member of the Awards Committee. Hilliard in turn requested a meeting with members of the Good Faith Efforts Review Committee. That meeting took place and two of the three members of the Good Faith Efforts Review Committee were in attendance, to include the chairman, a Mr. Pitchford. In the course of this meeting, at which "executive guidance" was given to the Good Faith Efforts Review Committee attendees, Hilliard and Potts made known their desire to give a more stringent or literal interpretation to the underlying rules dealing with the question of good faith efforts at compliance with the DBE contract goals. Following this consultation, the Good Faith Efforts Review Committee met for a second time to consider the question of Barco's good faith efforts at compliance with the DBE contract goals. The summarization of the final findings of the Good Faith Efforts Review Committee pertaining to Barco and other bidders may be found in the Petitioner's composite exhibit number 6. On this occasion Barco was recommended for rejection as to all three projects, based upon alleged failure to show good faith efforts at compliance with DBE goals. In these findings reference is again made to the fact that Barco provided a copy of its solicitation letter in all projects, which included the classes of work and enclosed with those letters copies of the appropriate quantity sheets for the projects. The comments note that the addressees log was provided to include the twenty-seven DBEs and a column indicating if return receipts were received; however, it notes that copies of the certified mail receipts were not provided with the bids. It again notes the names of the DBE bidders from whom quotes were received and the fact of rejection of those bidders in favor of nonDBE bidders, in view of the fact that the DBE bids exceeded the lower bids by more than 1 percent. Finally, in the comments sections, the Good Faith Efforts Committee expresses what they describe as their primary concern, that is, based upon the performance of other bidders, and the availability of DBE bids/quotes as provided to Barco, Petitioner could have easily supported the program and the objective of achieving DBE participation. Under the circumstances the committee did not feel that Barco had supported the spirit and intent of the program. The Barco bids were ultimately rejected for reason of failure to demonstrate a good faith effort in attempts at achieving the DBE goals. In making known its position on the Barco bids in the second review, the Good Faith Efforts Review Committee was acting in accordance with the "executive guidance" given it by Mr. Hilliard in his expression of concern about the fact that other bidders were able to achieve the department's DBE participation goals, while Barco failed to meet those goals in any of the three projects. Having rejected Barco's bid, Wiley N. Jackson Company was deemed to be the lowest responsible bidder for the three projects in question. Beginning with the bid letting in December, 1984, related to the Barco matter, the Department of Transportation has decided that solicitation would be in the form of certified mail, return receipt requested, or hand-delivery with appropriate receipt and that bidders would provide copies of the certified mail receipts or other receipts with the bid blank. The claim on the part of the bidder that the solicitations were made by certified mail, naming the persons who were solicited would not suffice even if those assertions could be proven by evidence submitted after the bid opening, which evidence tended to verify the claims as set forth in the summary letter. Moreover, the department decided that contrary to its prior interpretation of its rules, a substantial number of solicitations to available DBEs and WBEs listed in the department's directory would not be sufficient. Beginning with the Barco situation it would be necessary to solicit all available DBEs and WBEs, without regard for perceptions by the bidders on whether responses would be forthcoming from all available DBEs and WBEs. The department also determined that all quotations already received from DBEs or WBEs should be provided with the bid blank. A written summarization or itemization of those quotations would not be sufficient. The department takes the point of view in its decision to reject the Barco bids that it would not allow Barco to rely exclusively on the 1 percent differential between the quotations between non-DBEs and the DBEs from whom it received quotations, given what the department deemed to be unacceptable efforts in compliance with other review criteria as discussed. Finally, in the overview, the department rejected the Barco bids because of the impression that the efforts made by Barco at good faith compliance with DBE goals were not of the quality, quantity and intensity that was necessary. The bidder, which the department found to be responsive, namely Wiley N. Jackson, had used the DBE quotation of H. S. Thompson Construction Co. in complying with the requirements of the DBE goals. This Thompson was not solicited by the Petitioner and no quotation was used from that subcontractor in preparing the Barco bid responses. Nonetheless, the quotations from Thompson to Jackson exceeded by more than 1 percent the quotations from non-DBEs which were used by Barco in its bid responses in the projects. Another bidder of these projects had used Mikel L. Grassing, Inc., for that aspect of the project and Barco did not solicit Mikel Grassing, Inc. Obviously, no one is certain of the outcome had Barco solicited all available DBEs; however, the possibility existed that some of those DBEs would have offered a quotation which was no more than 1 percent above the non-DBE quotations that Barco used in preparing its bid responses in the projects. In July, 1984, Barco bid on a Department of Transportation project in which the DBE goal was 12 percent and that goal was achieved. Barco on one other occasion had submitted a bid in which it did not meet the DBE participation goal, based upon the fact that the non-DBE quotes were more than 1 percent lower than the quotations from DBE subcontractors and had been awarded the contract on that occasion.
The Issue Whether the Department of Labor and Employment Security, Division of Workers' Compensation (Division) properly issued a Stop Work Order (SWO) against Respondent on August 3, 1999. Whether Respondent owes a civil penalty, and if so, how much of a civil penalty does Respondent owe.
Findings Of Fact The Division of Workers' Compensation is statutorily charged with the task of enforcing the provisions of Subsections 440.10(1)(a) and 440.38, Florida Statutes (1999), requiring employers to comply with the coverage requirements of the Workers' Compensation Law. See Subsection 440.107(5) and (7), Florida Statutes. On August 3, 1999, Division Investigator Greg Mills, with two other investigators, engaged in a sweep of construction sites in Leon County to assure that the employers were in compliance with the Workers' Compensation Law. At a new private residential construction in progress at 2158 Chaires Cross Road, the investigators encountered Robert Carroll, who had just delivered Respondent's well-drilling rig to the location. Greg Mills interviewed Mr. Carroll. Mr. Carroll's responses at that time clearly indicated an employment relationship existed between Mr. Carroll and Respondent Bobby Cox, Sr. d/b/a C H Well Drilling. Greg Mills issued an SWO, pursuant to Subsection 440.107(3), Florida Statutes, and a penalty assessment based on the alleged employment and allegedly- evaded premiums for three years, for Mr. Carroll. At some time after Respondent had requested a hearing, the Division obtained information through discovery which convinced Division personnel to amend the SWO to include premiums and penalties based on an alleged employment relationship between Melford Sims and Respondent. Based on the 1099 tax forms received by Carroll and Sims from Respondent, the Division determined that during the three- year period preceding the SWO, Respondent had paid Carroll $7,320.30 in 1996; $33,903.50 in 1997, $34,363.50 in 1998, and $32,036.00 in 1999, and determined that Respondent had paid Sims $7,797.50 in 1997; $12,786.50 in 1998, and $11,056.00 in 1999. 2/ The National Council of Compensation Insurance (NCCI) classifies types of employment in SCOPES and specifies applicable premiums by employment classification. Well drillers are classified as Code 6204. The premium rate for each $100.00 of compensation was 35.71 percent in 1996, 27.86 percent in 1997, 24.63 percent in 1998, and 20.94 percent in 1999. Respondent did not dispute the appropriateness of employing the foregoing formula. The procedure is authorized under Rule 38F-5.111(6), Florida Administrative Code. The foregoing formula and procedure resulted in the insurance premium for Mr. Carroll being calculated as $2,614.00 in 1996; $9,446.00 in 1997; $8,460.00 in 1998; and $6,708.00 in 1999, and resulted in the insurance premium for Mr. Sims being calculated as $2,173.00 in 1997; $3,148.00 in 1998; and $2,315.00 in 1999. The Division therefore seeks to impose a fine of twice the allegedly-evaded premiums for Mr. Carroll ($27,228 x 2 = $54,456) and for Mr. Sims ($7,636 x 2 = $15,272) totaling $69,728.00 At all times material, Respondent Bobby Cox, Sr., was licensed and engaged in the business of drilling water wells in Leon County, Florida. He operates as a sole proprietor under the name "C H Well Drilling." No evidence was presented as to any incorporation or fictitious name registration of this entity. At no time material did Respondent ever file for a workers' compensation exemption. At no time material did Respondent obtain workers' compensation coverage for himself or any employee(s). Dr. Bobby Ray Phills is the Dean of the College of Engineering Science for Technology and Agriculture at Florida Agricultural and Mechanical University. He owns the property at 2158 Chaires Cross Road. He personally pulled the building permit, identifying himself as the building contractor, to construct a new residential construction. He obtained no workers' compensation insurance coverage for the project. Dr. Phills testified the he employed Selmo Bradley, a licensed general contractor, to do the framing and "manage the project" for him. Dr. Phills testified that he instructed Bradley that Bradley and all other contractors were responsible for their own workers' compensation coverage. There is no evidence that Selmo Bradley obtained workers' compensation insurance coverage for the Chaires Road project. Dr. Phills never spoke directly to Respondent. He paid no money directly to Respondent. Dr. Phills gave no evidence that he intended to pay Respondent through Mr. Bradley. Respondent testified that Mr. Bradley contacted him and negotiated with him to drill a well on Dr. Phills' property and that he expected to be paid by Mr. Bradley as the general contractor. Respondent testified that Mr. Bradley asked him if he had workers' compensation coverage for his employees for the Chaires Cross Road project and that he, Respondent, had answered "No." Respondent does not contend that Mr. Bradley ever told him that Bradley's workers' compensation coverage would protect Respondent or Respondent's employees. On August 3, 1999, Respondent directed Ralph Carroll to drive Respondent's truck, equipped with Respondent's well- drilling rig, and set up the rig on the Chaires Cross Road project. Respondent paid Mr. Carroll for his time in setting up the rig. However, drilling was not due to begin until the next day and did not begin due to Greg Mills' interrogation of Mr. Carroll and issuance of the SWO. When interviewed on August 3, 1999, Mr. Carroll described himself as working for Respondent and the man assisting him with the rig as "just a friend." He did not mention owning his own business and alluded to Respondent's getting the Chaires Cross Road job and telling Mr. Carroll where to go. To the degree his testimony at hearing varied from these statements, it is discredited. Additionally, at hearing, it developed that Mr. Carroll was "not actually in" the business of pump repair and well water service on August 3, 1999. As of the date of hearing, Mr. Carroll was still trying to get set up to do such business on his own beginning January 1, 2000. He was still buying some of his equipment. There is no dispute that Mr. Carroll had been employed as an employee by Respondent until August 1, 1996. Until that date, Respondent provided Mr. Carroll with W-2 tax forms, kept timesheets on him, and withheld the required federal tax and benefits. As of August 1, 1996, Respondent began to treat Mr. Carroll as an independent contractor, ceased withholding, and issued him 1099 tax forms for federal tax purposes. The Division also alleged that Melford Sims was an "employee" of Respondent, but it could not establish that Mr. Sims had ever been on Respondent's payroll or that any creative bookkeeping had been indulged-in to create an "independent contractor" façade for Mr. Sims. Respondent, Mr. Carroll, and Mr. Sims each testified that after August 1, 1996, when payment was received for a job worked by Mr. Sims or Mr. Carroll, expenses would first be paid, i.e., if equipment or casing broke, it would be paid from the proceeds. Then the profit, if any, would be split equally between Respondent and whichever of the other two men had done the job. If there was a problem on the job, satisfactory completion was the responsibility of Sims or Carroll, whichever had done the job, and there was no extra compensation paid by the customer or Respondent to correct the problem unless the well had to be drilled deeper. Respondent testified that after August 1, 1996, checks for well-drilling work were made out to him, usually by a general contractor, and that Respondent disbursed funds to Carroll and Sims as set out above. Despite Respondent's and Mr. Carroll's testimony to the effect that after August 1, 1996, they were each independent sole proprietors who assisted one another, subtracted the costs of doing business, and then split the profit of various well- drilling jobs, the following are indices that from 1996 through 1999, Mr. Carroll remained Respondent's "employee": Mr. Carroll owned a truck, tractor, and "ditch witch." He did not own a well-drilling rig, and he used Respondent's rig. Respondent held an occupational license to drill wells. Mr. Carroll did not. Respondent advertised in the telephone book yellow pages. Mr. Carroll did not. Mr. Carroll relied exclusively on Respondent to get well-drilling jobs for him. Respondent was Mr. Carroll's sole source of income 1996- 1999. Mr. Carroll did not file for a workers' compensation exemption during 1996-1999. He filed for one only after August 3, 1999. Mr. Carroll did not secure workers' compensation insurance for himself during 1996-1999. Mr. Carroll did not provide Respondent with an affidavit that met statutory requirements during 1996-1999. The following indices of Mr. Sims' situation 1996-1999 are mixed. Mr. Sims owns a truck, tractor, and "ditch witch." He does not own a well-drilling rig, but he occasionally "leases" Respondent's well-drilling rig for jobs of his own. Otherwise, he splits profits on jobs he gets with Respondent after costs are deducted as described above. The following indices of Mr. Sims's situation 1996-1999 are indicative of his independent contractor status: Mr. Sims holds his own occupational license separate from Respondent's. Mr. Sims advertises in the telephone book yellow pages with his own location and telephone number. The following indices are indicative of Mr. Sims's employee status 1996-1999: Mr. Sims did not file for a workers' compensation exemption during 1996-1999. Mr. Sims did not secure workers' compensation insurance for himself during 1996-1999. Mr. Sims did not provide Respondent with an affidavit that met statutory requirements during 1996-1999. At all times material, Respondent worked approximately 75 percent of the time for general contractors, who paid him by check. Twenty-five percent of the time, Respondent was paid directly by others, besides general contractors. Respondent worked for Thomas L. Baldwin, certified general contractor, and for Ken Seay, licensed residential contractor, among other contractors, during the three-year period 1996-1999. These two named contractors testified to being covered by workers' compensation insurance carriers during this period. Respondent testified that he had also worked for 30-50 other general contractors during this period of time and that at all times he had relied upon these contractors covering him and his employees through Florida's statutory workers' compensation scheme, which holds general or prime contractors liable for injuries to their subcontractors and subcontractors' employees if the subcontractors have not obtained their own workers' compensation coverage. Respondent provided a sampling of applications for, and certificates of, insurance from the two named contractors and other contractors, some of which were workers' compensation policies, some of which were employers' general liability policies, and none of which covered the entire three-year period. Respondent did not establish the specific dates he worked for each general contractor.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Division of Workers' Compensation enter a Final Order that Affirms the Stop Work Order. Affirms the $100 penalty related to Mr. Carroll's employment, pursuant to Subsection 440.107(5), Florida Statutes; and Assigns only an additional penalty, based solely upon the "wages" of Mr. Carroll, in the amount of $54,457.00, plus statutory interest. DONE AND ENTERED this 20th day of March, 2000, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS 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 20th day of March, 2000.
Findings Of Fact Based upon the prehearing stipulation, the testimony of the witnesses, and the documentary evidence received at the hearing, the following findings of fact are made: Sometime prior to May 27, 1992, the Department solicited bids for contract no. 18103, section/job no. 11130-3518 (the project). The DBE goal for the project was stated at ten percent. The bids for the project were opened on May 27, 1992, and six timely bids were received including one from Hubbard and one from APAC. Hubbard's bid was the apparent low bid at $1,573,558.00 when compared to APAC's bid of $1,706,337.22. All other bids were presumably higher and are not at issue in these proceedings. All such bids were, however, deemed responsive by the Department. The Department established two dates for the posting of the award for this project. One date, June 18, 1992, was twenty-two days after the letting. That calculation requires that the actual letting date (May 27, 1992) be counted as the first day. The second date, using the same approach, was specified at forty days after the letting, July 6, 1992. The Department elected to post for this project on day 22, and its intent to award the contract to APAC was therefore disclosed on June 18, 1992. Hubbard timely filed an initial protest to the intent to award, and subsequently timely filed its formal protest on June 29, 1992. The Department rejected Hubbard's bid solely because one of its subcontractors, CDS Trucking, was not on a list of certified DBE firms on the day the bids for the contract were opened. Hubbard is a highway construction contractor which bids for, and performs, highway construction projects with the Department and other public entities. Hubbard is aware of public contracts that require a specified percent to be performed by DBE subcontractors. In fact, most of Hubbard's work is performed pursuant to such contracts and, as Petitioner has been in business for a number of years, it has vast experience meeting DBE goals. More important, Petitioner has never failed to meet a DBE goal. The Department is fully cognizant of Hubbard's past performance and reputation regarding compliance with DBE goals. When it receives an invitation to bid on a public construction project, Hubbard contacts DBE subcontractors for quotes for the job. While these contacts may be informal, such as by telephone conversation or facsimile transmission, the subcontractor is made aware that it is being contacted for the quote in reference to the DBE goal for the proposed project. In this case, Hubbard contacted CDS Trucking for a DBE subcontractor quote. Petitioner has used CDS Trucking numerous times in the past to perform services and on each such occasion CDS Trucking has been identified and accepted as a DBE. CDS Trucking gave Hubbard a quote of $30,000.00 to perform asphalt hauling services on the subject project. Taken in total with the other four DBEs who gave quotes to Hubbard, the total proposed DBE participation on Petitioner's bid was 10.65 percent. This amount exceeded the Department's stated goal for the project. Without including CDS Trucking, Hubbard's bid did not meet the 10 percent DBE goal. Under the Department's policy, in order to be eligible for inclusion as a DBE, a subcontractor must be listed in a DBE directory published each month by the Department. To be included in the directory a subcontractor must be a certified DBE as determined by the Department's minority programs office, must be in the process of seeking DBE certification renewal by having applied for such renewal not later than 90 days prior to certification expiration, or be certified on the date the directory list is closed for the month. Additionally, the Department will allow a contractor to use a DBE firm that is certified subsequent to the printing of the DBE directory, if such company is certified prior to the submission of bids. Under the foregoing policy, it is not unusual for the DBE directory to include numerous subcontractors who are, in fact, noncertified DBEs at the time of the bid letting or award. Consequently, a contractor using a noncertified DBE may qualify for, and receive, a contract award simply because it used a subcontractor listed in the DBE directory. Conversely, the use of a subcontractor who is not included in the DBE directory but is, in fact, a certifiable DBE may result in the contractor's bid being deemed nonresponsive for not meeting the DBE goal. Pertinent to this case, CDS Trucking has been identified and certified as a DBE since 1985. During that time there have been two lapses in DBE's certification status. Both lapses were voluntary in the sense that CDS Trucking, through its own conduct, intentionally failed to renew its certification. In the first instance, the company was undergoing internal organizational changes that delayed the application process. In the second case, Mrs. Cantero, the office manager and person responsible for the recertification application, was out of the office ill for an extended period of time. During these occasions, CDS Trucking knew its certification as a DBE would be suspended until completion of the renewal applications. CDS Trucking has never been denied DBE certification. The factual circumstances giving rise to CDS Trucking's initial eligibility and certification as a DBE and its current status have not changed. The DBE certification held by CDS Trucking for the 1991/92 year expired on March 13, 1992. On February 7, 1992, CDS Trucking filed an application for DBE recertification. Had the Department acted on that application within 90 days of its filing, CDS Trucking would have been recertified as a DBE on or before May 7, 1992. At the time the application for recertification was filed, CDS Trucking had submitted all information required by law or rule as set forth on the application form. No additional information from the applicant was required by law or rule in order for the Department to act on the application. Instead of processing the application within 90 days, the Department requested copies of two contracts recently executed by the applicant. The form letter issued by the Department provided: "Your application is presently under review. In order to complete this review, please submit the following additional information." (emphasis added) Such letter incorrectly suggested to CDS Trucking that if it did not furnish the information, its application would not be completed. On March 24, 1992, CDS Trucking responded to the request and submitted the additional information which it thought was required to complete its application. Because it had requested additional information, the Department extended the time within which to act on CDS Trucking's application for recertification. Since the Department's request for such information was made on the last possible date to make such request, the time to act on the application, under the Department's interpretation, was extended the maximum length of time. More important to this case, however, is the fact that the Department had no basis, in law or fact, to seek additional information from CDS Trucking. Moreover, had CDS Trucking filed its application for recertification prior to 90 days before the expiration of its certificate, the Department would have left CDS Trucking on the DBE roster regardless of the length of time necessary to process its renewal, including any delays created by the Department's requests for additional information. The Department does not have a rule that requires DBE applicants for recertification to file for renewal not later than 90 days prior to expiration of their certifications. The DBE directory used for this bid letting included the names of many DBE subcontractors whose certifications had expired before April 8, 1992, the date of printing for the directory. An even larger number of DBE subcontractors whose certifications expired before May 27, 1992, were included in the DBE directory used for this bid letting. One of the DBE subcontractors used by an unsuccessful bidder on this project (whose bid the Department did not deem nonresponsive) had a certification that had expired on June 12, 1988. At the time it gave Hubbard the quote for this project, CDS Trucking believed it was operating as a DBE. Since CDS Trucking had supplied all requested information to the Department and had a history of certification, no reasonable basis existed to presume CDS Trucking was not a bona fide DBE. CDS Trucking, by giving a quote to Petitioner, represented itself as a DBE to Hubbard. Hubbard relied on the quote from CDS Trucking and presumed it to be a DBE. As such, Hubbard further presumed it had met the DBE requirement for this project and, consequently, did not believe it needed to make an additional good faith showing. Indeed, had the Department followed its applicable rules, CDS Trucking would have been certified on the date of the letting, May 27, 1992. Had Hubbard known CDS Trucking was not certified on May 27, 1992, other arrangements could have been made. The Department arbitrarily rejected Hubbard's bid and refused to look at the facts and extenuating circumstances regarding CDS Trucking and the Department's own failure to timely process the DBE's renewal application. The fact that CDS Trucking, because of the Department's own failure to timely issue the recertification, was not certified on the date of letting is a minor irregularity in that CDS Trucking was certified on the date of the award and clearly was eligible for certification at all times. More important, the inclusion of CDS Trucking as a DBE does not convey an improper advantage on Hubbard not enjoyed by the other bidders. The Department failed to consider any of the factual matters related to CDS Trucking when it determined Hubbard's bid to be nonresponsive for its alleged failure to meet the DBE project goal. In fact, when the fact that CDS Trucking should have been certified by the Department on May 27, 1992 is considered, Hubbard's bid for this project did and does meet the DBE project goal.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Department of Transportation enter a final order finding Hubbard Construction Company's bid responsive, and awarding contract no. 11130-3518 to Hubbard Construction Company. DONE and ENTERED this 21st day of October, 1992, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of October, 1992. APPENDIX TO CASE NO. 92-4018 RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER: 1. Paragraphs 1 through 33, 36, 38, 41, 43, 47, 48, 51, and 55 are accepted. 2. Except as specifically addressed in the foregoing findings of fact, all remaining paragraphs are rejected as hearsay, argument, presuming facts not in evidence, contrary to the weight of the evidence or misstatement of the record, irrelevant, or repetitive. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT: 1. Paragraphs 1 through 5, 8, 11, 14, 15, 16, 17, 18, 19, 20, 22, 24, 29, 31, 32, 36, 38, 45, 46, 47, 48, 50, 51, 52, 53, 54, 55, 57, and 59 are accepted. 2. Except as specifically addressed in the foregoing findings of fact, all remaining paragraphs are rejected as incorrect or incomplete references of fact, recitation of testimony not accepted as ultimate fact, argument, irrelevant, contrary to the weight of the total evidence, or inapplicable as a matter of law and therefore immaterial. COPIES FURNISHED: Susan P. Stephens Asst. General Counsel Dept. of Transportation 605 Suwannee Street Tallahassee, Florida 32399-0450 F. Alan Cummings, Esquire Mary Piccard, Esquire P.O. Box 589 Tallahassee, Florida 32302-0589 Ben G. Watts, Secretary Attn: Eleanor F. Turner Department of Transportation 605 Suwannee Street, MS 58 Tallahassee, Florida 32399 0458 Thornton J. Williams, Esquire General Counsel Department of Transportation 605 Suwannee Street, MS 58 Tallahassee, Florida 32399 0458
Findings Of Fact Petitioner, E. J. Strickland Construction, Inc. (Petitioner), submitted to Respondent, Department of Transportation (Department), a bid on State Project No. 75030- 3518. Petitioner's was the lowest bid received by the Department. Petitioner's bid failed to meet the D.B.E. goals on State Project No. 75030-3518. The D.B.E. goal was 12 percent; under Petitioner's bid, only .04 percent of the contract would be performed by economically disadvantaged business enterprises. The only effort Petitioner made to secure bids of certified D.B.E. contractors to incorporate in its bid to the Department was to run a legal advertisement in the Orlando Sentinel on January 18, 19 and 20, 1986. The Department was scheduled to open all bids on January 22, 1986. Petitioner documented only the advertisements and the fact that it incorporated the only response to the advertisements in its bid in an effort to demonstrate good faith effort to meet the D.B.E. goals. 2/ There is no evidence that Petitioner acted with specific discriminatory intent in preparing its bid on State Project No. 75030-3518. Petitioner proved that it acted in this case precisely as it acted in the only other Department job on which it bid. In that case, Petitioner ordered from the Department plans and specifications and was sent plans, specifications and a bid package and was placed on the Department's list of prospective bidders. In accordance with the custom in the industry, the Florida Transportation Builders Association (FTBA) obtained from the Department the list of prospective bidders as of ten days before the bid letting date and distributed the list to its members. In accordance with the custom in the industry, several DBE and WBE contractors contacted Petitioner, verified that Petitioner was bidding on the project and submitted proposals for inclusion in Petitioner's bid. In that way, Petitioner received enough response from certified DBE and WBE contractors to meet the DBE and WBE goals on the job. In this case, in accordance with the Department's normal practice, the Department only sent Petitioner plans and specifications in response to Petitioner's December 30, 1985 request for plans and specifications. Also, since Petitioner did not specifically request a bid package, the Department did not include Petitioner on its list of prospective bidders. For that reason, no FTBA members, including the certified DBE contractor who bid on Petitioner's previous job with the Department, received notice that Petitioner was a prospective bidder on State Project No. 75030-3518. Had Petitioner been included on the FTBA list, Petitioner probably would have received enough response from certified DBE contractors to meet the DBE goals on this job, too. All four of the other bidders on State Project No. 75030-3518 met the DBE goals. One of them relied entirely on the FTBA list to notify prospective certified DBE contractors. One of them -- including the next lowest bidder, Cone Constructors, Inc. -- also sent a written request for a proposal to Pary, Inc., the same certified DBE contractor who previously had contracted with Petitioner on a Department job that was still ongoing. Another of the bidders on State Project No. 75030-3518 telephoned Pary, Inc., and asked for a proposal. Petitioner is not a member of the FTBA and did not inquire whether it was listed as a prospective bidder on the FTBA list. Petitioner did not make any effort to use the Department's DBE directory to directly contact certified DBE contractors concerning the job. Petitioner did not even contact Pary, Inc., to request a bid although Pary, Inc., was working for Petitioner at the time and had not responded to Petitioner concerning State Project No. 75030-3518. Petitioner's small effort to meet the DBE goals on State Project No. 75030-3518 did not rise to the level of good faith efforts. The evidence that Petitioner acted in this case precisely as it acted in the only other Department job on which it bid does not prove that Petitioner made a good faith effort in this case. To the contrary, it proved only that Petitioner was lucky to meet the DBE goals on the prior contract.
Recommendation Based upon the foregoing Findings Of Fact and Conclusions Of Law, it is RECOMMENDED that Respondent, Department of Transportation, dismiss the bid protest of Petitioner, E. J. Strickland Construction, Inc., and award the contract in State Project No. 75030-3518 to the lowest responsive bidder, Cone Constructors, Inc. RECOMMENDED this 25th day of April, 1986, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 25th day of April, 1986.
The Issue The issues in this proceeding are whether Gilbert’s bid proposal was responsive to the Department of Transportation’s bid proposal, and whether the Department of Transportation (Department) erred in accepting the bid of Gilbert. State alleged that Gilbert failed to comply with the DBE bid information submittal requirements of Rule 14-78.003(2)(b)3.a., Florida Administrative Code, in filing the DBE forms for the project.
Findings Of Fact State and Gilbert, among other prequalified bidders, submitted timely bids for State Project No. 86075-3423/03175- 3426, which involves the replacement of toll plazas on State Road 93 (also known as Alligator Alley) in Collier and Broward Counties. The project has been referred to in this proceeding as “the Alligator Alley project.” (Agreed Facts) The Department has adopted Rule Chapter 14-78, F.A.C., to govern utilization of DBE’s on state and federally funded construction projects. The specifications for the Alligator Alley project also include Special Provisions for Disadvantaged Business Enterprises, which incorporate many of the requirements of Rule 14-78.003, Florida Administrative Code. Consistent with Chapter 14-78, Florida Administrative Code, and the Special Provisions, the Department assigned Disadvantaged Business Enterprise (DBE) goals to the Alligator Alley project requiring bidders to subcontract 4% of the work to black DBE’s and 8% of the work to non-minority women DBE’s. (Agreed Facts) State and Gilbert submitted their sealed bid packages to the Department before the advertised deadline for bids, 10:30 a.m. on August 28, 1996. A Department review of the amounts bid showed that Gilbert was the apparent low bidder, submitting a bid totaling $9,153,215.07, while State was the apparent second-low bidder, submitted a bid totaling $9,566,051.25. (Agreed Facts) Consistent with Rule 14-78.003(2)(b)3., Florida Administrative Code, and the bid specifications, bidders were permitted to submit DBE Utilization Summary Forms and DBE Utilization Forms within 72 hours after submittal of their bid packages. State and Gilbert timely submitted DBE Utilization Summary Forms, showing the total amount committed to be subcontracted to DBE’s in order to meet each of the DBE goals set for the contract. The two companies also timely submitted DBE Utilization Forms that purported to commit each bidder to subcontract with DBE’s in amounts that totaled those shown in the DBE Utilization Summary Forms. (Agreed Facts) Gilbert’s DBE Utilization Summary Form stated that Gilbert would subcontract $369,000 (or 4% of its total bid) to black DBE’s and $734,600 (or 8% of its total bid) to non-minority women DBE’s. State’s DBE Utilization Summary Form stated that State would subcontract $400,000 (or 4% of its total bid) to black DBE’s and $800,000 (or 8% of its total bid) to non-minority women DBE’s. (Agreed Facts) The Special Provisions of the bid specifications that address the DBE Forms provide as follows: The contractor’s submission shall include the following information (submitted on Form Nos. 275-020-003 Utilization Summary and 275-020- 004 Utilization Form): The names, addresses of certified DBE firms that will participate in the contract. Only DBEs certified by the Department at the time of the bid may be counted toward DBE goals. A description of the work each named DBE firm will perform. The dollar amount of participation by each named DBE firm. If the DBE goal is not met, sufficient information to demonstrate that the contractor made good faith efforts to meet the goals. (Agreed Facts) [Emphasis Supplied] Gilbert submitted DBE Utilization Forms for each of its DBEs stating the DBE’s name, address, telephone number, the signature of the DBE or authorized individual. Gilbert submitted a DBE form for Alco Trucking, a firm owned by a Black male, which stated the value of the subcontracting work to be done as $369,000 without reduction or qualification, and stated regarding the work to be done as follows: Item No. Description of Work (Note if item qualifies for supplier) Various Hauling, aggregates, fill, on site trucking Gilbert submitted a DBE form for Swiftline Trucking, a firm owned by a non-minority female, which stated the value of the subcontracting work to be done as $82,200, without reduction or qualification, and stated regarding the work to be done as follows: Item No. Description of Work (Note if item qualifies for supplier) Various Hauling, aggregates, fill, on site trucking Gilbert submitted a DBE form for Jayalden Enterprises, a firm owned by a non-minority female, which stated the value of the subcontracting work to be done as $264,000, without reduction or qualification, and stated regarding the work to be done as follows: Item No. Description of Work (Note if item qualifies for supplier) 735-74-A Toll Plaza (Partial) 735-74-B Toll Plaza (Partial) Gilbert submitted a DBE form for Precision Contracting, a firm owned by a non-minority female, which stated the value of the subcontracting work to be done as $305,000, without reduction or qualification, and stated regarding the work to be done as follows: Item No. Description of Work (Note if item qualifies for supplier) 544-75-5 Impact Attenuator Vehicular (Partial) 102-1-A MOT (Partial) On each DBE form, Gilbert filled in the line for an “amount to be paid to DBE Subcontractor” and the total committed “toward the DBE goal,” but did not fill in the line for “Amount to be paid to DBE Supplier.” (Agreed Facts) State submitted DBE Utilization Forms for each of its DBEs stating the DBE’s name, address, telephone number, the signature of the DBE or authorized individual. State submitted a DBE form for Metro Engineering Constractors, Inc., a Black owned business, which stated the value of the subcontracting work to be done as $400,000 without reduction or qualification, and stated as follows: Item No. Description of Work (Note if item qualifies for supplier) 120-6 Embankment and 285-701 Limerock Base and Haul & Supply Materials 285-709 Limerock Base and Earthwork State submitted a DBE form for Freedom Pipeline Corporation, a non-minority female owned business, which stated the value of the subcontracting work to be done as $800,000 without reduction or qualification, and stated as follows: Item No. Description of Work (Note if item qualifies for supplier) 121-70 Flowable Fill 400-1-2 Class I Concrete Endwalls through Storm Drainage 514-71-3 Plastic Filter Baric (Riprap) and 1513120-118 Pipe Ductile Iron Pusyh on Joint 8” and 415-1-3 Reinforcing Steel Retaining Walls Retaining Walls and 635-1-11 Pull & Junction Boxes through Sewer & Water 1648100-7 Misc Water Fixt Blow Off Assy 285-701 Limerock Base and Haul & Supply Materials 285-709 Limerock Base and Earthwork State indicated on its DBE forms that both contractors were suppliers of materials and indicated that the total amount of the contract in both cases was to go to the DBE contractor. The Department’s Minority Programs Office is responsible for the implementation of the Department’s DBE program and reviews the DBE Utilization Forms submitted with bids. Kenneth Sweet, who is employed in the Minority Programs Office, had responsibility for reviewing Gilbert’s DBE Utilization Forms and determined that they complied with Rule 14-78.003(2)(b)3.a., Florida Administrative Code, and the Special Provisions of the bid specifications addressing DBE’s. The Department did not contact Gilbert or any of the DBE’s listed on Gilbert’s forms to confirm or obtain clarification of the information stated thereon. (Agreed Facts) The Department posted the bid tabulations for the Alligator Alley project, showing an award to Gilbert as the lowest responsive bidder. State filed its Notice of Protest with the Department’s Clerk of Agency Proceedings on September 23, 1996, 1996, and filed its Formal Protest on October 2, 1996. After this matter was referred to the Division, Gilbert filed its Petition to Intervene on October 22, 1996, which was granted on October 25, 1996. (Agreed Facts) It was stipulated that all of the DBE’s reflected in the DBE Utilization Forms submitted by Gilbert and State were certified DBE’s. (Agreed Facts) Gilbert’s DBE Utilization Forms were submitted to the Minority Programs Office within 72 hours after the project letting and the forms were signed by DBE representatives. The Department is dependent upon the accuracy of the information provided by the bidders to assess DBE participation. Gilbert and one of its DBE’s did not have the identical understanding of the exact scope of the work to be performed by the DBE which might impact how much of the value of the contract would be credited for DBE participation; however, there is no evidence of collusion or fraud in any of the quotes. The Department credits 60% of the value of a contract when the DBE contractor is a supplier of materials, and 100% of the value of the contract when the DBE Contractor furnishes and installs the materials designated as furnish and install items in the specifications. The toll booths and attenuators were not furnish and install items. Gilbert included 100% of the value of the contracts with Alco, Swiftline, Precision and Jayalden as DBE participation. The Department accepted Gilbert’s representations as presented in its DBE forms without questioning what services were being performed or provided by these DBE Contractors. Ken Sweet of the Department’s DBE programs office testified. The Department's justification for not examining the DBE proposals more closely was that the Department requires the prime contractor to adhere to the amount of the DBE work as presented in the forms. While this may be sufficient to maintain the integrity of the DBE program, it is insufficient review to insure that the contractor has complied with the rules for crediting DBE participation and to insure the competitiveness of the bid process. Although Gilbert asserted at hearing that its subcontractors, Swiftline and Alco, would be supplying and placing the materials, it did not so state in its forms. The forms for Alco and Swiftline said, "hauling, aggregates, fill, and on site trucking." There was no basis for the Department to conclude that the contractors were supplying and placing the materials. Further, there was no evidence that Alco and Swiftline were "regular dealers" in fill or aggregates, or identification of their sources of aggregate and fill. Gilbert indicated no item numbers with regard to Alco and Swiftline. If item numbers had been provided, the status of the work as furnish and install items could have been determined. Only two verb forms were used in the "Description of Work" portion of form: “hauling” and “trucking”. Petitioner showed that the value of the contract exceeded the reasonable value of the trucking and hauling to be done on the project. At hearing, Gilbert asserted that Swiftline and Alco were suppliers. This evidence may not be considered. The Department should have limited Gilbert's DBE credit to the value of the hauling and trucking. This was the only work described in the DBE utilization forms. Although the value of the trucking and hauling alone was not proven, it obviously was less than the full contract amount. Gilbert had stated the DBE participation amounts at the minimum required amount. Any reduction of amount creditable to a Black minority contractor would have placed Gilbert below the four percent goal stated in the specifications. The Department credited Gilbert with 100% of the value of the contract with Jayalden towards DBE participation. The DBE Utilization Form for Jayalden does not indicate Jayalden is a supplier or regular dealer. The form does not state Jayalden would install the toll booths. A contractor may obtain 100 percent credit for DBE participation for materials provided by a DBE manufacturer, a DBE regular dealer or a DBE who furnishes and installs items designated furnish and install items in the specifications. The Department knew there were only two approved manufacturers of toll booths. Jayalden was not one of the manufacturers. Neither of the manufacturers were DBE certified. Gilbert's DBE forms did not identify Jayalden as a "regular dealer," and the toll booths were not designated furnish and install items in the specifications The Department must approve additional items as furnish and install items if not designated in the specifications. The Department did not add the toll booths as furnish and install items. The evidence shows that the manufacturer offered to provide the toll booths and install the toll booths for $75,000 each. Jayalden agreed to acquire, ship and install the booths for $76,000 each. A question arises regarding the commercially useful function Jayalden was performing if the manufacturer would furnish and install the nine booths for $75,000 each. In response to the question regarding the commercially useful function Jayalden performed, evidence was presented that Jayalden assumed responsibility for this acquisition and installation of the booths and Jayalden relieved the contractor of "managing" that part of the project. The rules required the Department's approval of the commission or fee paid for management services of this type. The rules do not permit credit for DBE participation of the value of the toll booths. This would reduce the credit for minority non- Black participation by Jayalden from $684,000 to $9,000, less than the required non-Black minority DBE participation. The evidence regarding Precision established Precision was a regular dealer in traffic control devices, and contracted to supply, service and install these devices on the project. The DBE Utilization Form for Precision indicates the Item No. and indicates "Impact Attentuator Vehicular (Partial)" and "MOT (Partial)". Precision's form provided sufficient data to justify being given 100% credit. Gilbert's other DBE forms did not present any special condition warranting increasing DBE credit. The DBE Utilization Forms as submitted by Gilbert failed to mention or identify any special conditions or circumstances affecting the amount of credit Gilbert received for DBE participation. The facts submitted at hearing reveal that at least one special condition or circumstance was applicable to each subcontractor in order to justify crediting Gilbert with 100% of the value of the contract with the DBE toward DBE participation. With exception of Precision, the information was provided only after the bid opening and improperly supplemented the original proposal. The Department had previously approved DBE Utilization Forms providing the same type of information as contained on Gilbert’s DBE Utilization Forms. Had the Department reviewed the proposals as required, Gilbert would have been determined not to have met the DBE specifications. Gilbert did not justify its failure to meet the DBE participation because it facially had met the DBE criteria under the Department's existing policies. In contrast, the DBE form submitted by State for Metro indicates the items numbers involved, and that Metro will “Haul & supply materials and earthwork.” Similarly, the work to be performed by Freedom Pipeline was clearly identified and sufficient information provided to advise the Department of any special conditions affecting the credit to be awarded for DBE participation. One can readily ascertain that the subcontractor is a hauler, supplier and installer of the limestone, and that the contractor should receive 100% credit for minority participation of the contract's value. State was able to meet the DBE participation specification.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is, RECOMMENDED: That the Department enter its Final Order finding that Gilbert was non-responsive; however, because Gilbert followed the existing policies of the Department which were erroneous, it is recommended that the Department reject all bids and republish the invitation to bid to afford interested contractors an opportunity to file new proposals. DONE and ENTERED this 3rd day of February, 1997, in Tallahassee, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of February, 1997.
The Issue The issue is whether the proposed award of Contract No. E1G23 to DeAngelo Brothers, Inc. d/b/a DBI Services Corporation (DBI) is contrary to the Department of Transportation’s governing statutes, rules, policies, or the specifications in the Request for Proposals (RFP).
Findings Of Fact On June 18, 2007, the Department issued RFP No. E1G23, which solicited proposals for “ultra asset maintenance” for Interstate 75 (I-75) and interchanges in Broward, Collier, Lee, Charlotte, Manatee, Desoto, and Sarasota Counties. The Department issued three addenda to the RFP. The addenda did not make any material changes that are pertinent to the issues in this proceeding. The Scope of Services for the RFP stated that for all roadways and facilities covered by the contract, the contractor will be responsible for performing all of the maintenance activities that would otherwise have been performed by the Department, including but not limited to, mowing the right-of- way, maintaining guardrails, fixing potholes, maintaining stormwater management facilities, cleaning and maintaining rest areas, tree trimming, and incident response and management. In the asset management industry, this type of contract is known as a comprehensive asset management contract because the contractor is responsible for all maintenance activities within the right-of-way “from fence to fence, including the fence.” The RFP states that the contract will be awarded to the responsive and responsible vendor whose proposal receives the highest total score, which is composed of a price score and a technical score. The price score is weighted 30 percent, and the technical score is weighted 70 percent. The vendor proposing the lowest price received the full 30 points for the price score. The other vendors’ price scores were calculated through a mathematical formula based upon the percentage that the vendor’s price exceeded the lowest price. The technical score was based upon a subjective evaluation of the proposals in four broad categories: administration plan (weighted 20 points); management and technical plan (weighted 30 points); operation plan (weighted 30 points); and compliance plan (weighted 20 points). There are sub-categories in each of those categories, with a specific number of points assigned to each sub-category. Five evaluators independently reviewed the proposals. The evaluators –- Jennifer Perry, Howard Summers, David Holden, Lance Grace, and Robert Mannix -- were Department employees selected based upon their familiarity with the areas and services covered by the contract. All of the evaluators attended the pre-bid conference, which was mandatory for prospective bidders. No questions or concerns were raised at the pre-bid conference or at any point prior to submittal of the proposals regarding the evaluators having experience with the prior I-75 contract or having been involved in the preparation of the RFP. Three companies -- ICA, DBI, and VMS, Inc. (VMS) -- submitted responses to the RFP. ICA is a Tennessee corporation. DBI is a Pennsylvania corporation. Both companies provide asset management services in Florida and around the country, but ICA has more experience than DBI in providing comprehensive asset management services. The price offered by ICA -- $89,200,300.01 -- was the lowest of the three vendors that responded to the RFP; the price offered by DBI -- $92,630,739 -- was approximately 3.8 percent higher. As a result, ICA received a price score of 30 and DBI received a price score of 28.89. Three of the five evaluators -- Ms. Perry, Mr. Summers, and Mr. Golden -- scored DBI’s proposal the highest. Two of the evaluators -- Mr. Grace and Mr. Mannix -- scored ICA’s proposal higher than DBI’s proposal, but they scored VMS's proposal the highest. None of the evaluators scored ICA’s proposal the highest. DBI’s proposal received an average score of 85.40 from the evaluators, and ICA’s proposal received an average score of 82.96. As result, DBI received a technical score of 59.78, and ICA received a technical score of 58.07. When the price scores and the technical scores were combined, DBI received the highest total score of 88.67. ICA was the second-ranked vendor with a total score of 88.07. VMS was the third-ranked vendor with a total score of 86.12.3 On August 21, 2007, the Department posted notice of its intent to award the contract to DBI. The initial posting erroneously identified the winning vendor as “DeAngelo Brothers, Inc. T/A Aguagenix, Inc.” rather than DBI. The contract administrator, Cheryl Sanchious, explained that this was a clerical error caused by the Department’s computer system and that it has been corrected in the system. ICA timely filed a notice of protest and a formal written protest challenging the award to DBI. ICA posted a cashier’s check in the statutorily required amount in lieu of a protest bond. After the protest was filed, the Department entered into temporary emergency asset management contracts for the roadways and facilities covered by contract at issue in this case. ICA was given the contract for Broward and Collier Counties because it was already providing asset management in those counties under the predecessor to the contract at issue in this case, No. BC680. DBI was given the contract for the other counties, Sarasota, Lee, Manatee, Charlotte, and Desoto. It is undisputed that ICA’s proposal was responsive to the RFP in all material respects. The focus of ICA’s protest is four-fold. First, ICA contends that DBI’s proposal is not responsive because it did not affirmatively state that it would grant a first right of refusal to RESPECT of Florida (RESPECT). Second ICA contends that DBI is not a “responsible vendor” and that the Department confused the concepts of “responsiveness” and “responsibility” in its review of the proposals. Third, ICA contends that the evaluation committee failed to prepare a technical summary as required by the RFP, and that its failure to do so was material because it would have brought to light the discrepancies in Ms. Perry's scoring. Fourth, ICA contends that Ms. Perry's scoring was flawed and out of sync with the other evaluators in several respects. Each issue is discussed in turn. Responsiveness / RESPECT First Right of Refusal Section 8.2 of the RFP provides that “[a] responsive proposal shall perform the scope of services called for in this Proposal Requirements [sic] and receive a Technical Proposal score of at least seventy (70) percent of the maximum attainable points established for scoring the Technical Proposal.” Section 17.1 of the RFP provides that “[d]uring the process of evaluation, the District Contracts Office will conduct examinations of Proposals for responsiveness to requirements of the Proposal Solicitation. Those determined to be non-responsive will be automatically rejected.” Section 16.5 of the RFP requires the proposal to “[u]se only statements of what the Proposer will or will not accomplish” rather than “words such as may, might, should, etc.” Section 8.5 of the RFP authorizes the Department to “waive minor informalities or irregularities in Proposals received where such is merely a matter of form and not substance, and the correction or waiver of which is not prejudicial to other Proposers.” That section defines “minor irregularities” as “those that will not have an adverse effect on the Department’s interest and will not affect the price of the Proposal by giving a Proposer an advantage or benefit not enjoyed by other Proposers.” The Scope of Services for the RFP requires the contractor to “grant ‘Respect of Florida’ a first right of refusal” to provide maintenance services at rest areas. This was intended by the Department to be a mandatory requirement of the RFP, and was understood as such by ICA and DBI. RESPECT is a not-for-profit organization that employs disabled and disadvantaged individuals. RESPECT employees perform janitorial and grounds maintenance functions at rest areas, including one of the rest areas covered by the RFP. ICA’s proposal expressly states that “ICA will grant Respect of Florida first right of refusal on rest area janitorial work consistent with statewide maintenance practices.” DBI’s proposal does not include an affirmative statement that it will grant RESPECT a first right of refusal. However, DBI stated in its proposal that it “is currently in negotiation with [RESPECT] to expand their existing maintenance responsibilities for rest areas within the project limits” and that “DBI Services believes that expanding [RESPECT’s] responsibilities in the project is the right thing to do.” The absence of an affirmative statement in DBI’s proposal that it will grant RESPECT a first right of refusal was not material to the evaluators. For example, evaluator Robert Mannix testified that he “generally looked for more of the intent to give [RESPECT] the opportunity of making a bid rather than the specific language of right of first refusal.”4 Similarly Ms. Perry testified that she considered granting RESPECT a first right of refusal to be a requirement of the contract whether or not the contractor mentioned it in its proposal. Amy Burlarley-Hyland, director of asset management for DBI, testified that DBI intends to provide a first right of refusal to RESPECT and that, consistent with the statement in DBI’s proposal, DBI is “committed to expanding Respect’s responsibilities on this project.” She explained that she did not include an affirmative statement to that effect in the proposal because it is “a known requirement” that will be part of the contract by virtue of it being in the RFP. Mr. Rader, ICA’s executive vice president, testified that it is more costly to contract with RESPECT to provide maintenance services than to contract with another entity to provide those services. Ms. Hyland disagreed with that testimony, as did Ms. Perry. No documentation was provided to support Mr. Rader’s claim that it is more expensive to contract with RESPECT, and the evidence was not persuasive that DBI received a competitive advantage by not affirmatively stating in its proposal that it will grant a first right of refusal to RESPECT. The RFP does not require the vendor to expressly acknowledge and affirmatively agree to meet each and every mandatory requirement in the RFP. Indeed, if this were the test for responsiveness, ICA’s proposal would be nonresopnsive because it failed to expressly acknowledge and affirmatively agree to meet a number of the mandatory requirements in the RFP. DBI’s proposal complies with the intent of the RFP in regards to RESPECT. Its failure to specifically state that it will grant RESPECT a first right of refusal is, at most, a minor irregularity. Failure to Determine DBI’s Responsibility Responsiveness and responsibility are separate, but related concepts in the competitive procurement context. Section 287.012(24), Florida Statutes, defines “responsible vendor” to mean “a vendor who has the capability in all respects to fully perform the contract requirements and the integrity and reliability that will assure good faith performance.” Section 287.012(26), Florida Statutes, defines “responsive vendor” to mean “a vendor that has submitted a bid, proposal, or reply that conforms in all material respects to the solicitation.” In order to bid on certain Department contracts, a vendor has to be pre-qualified under Florida Administrative Code Rule Chapter 14-22. Pre-qualification serves as an advance determination of the vendor’s responsibility. Pre-qualification is generally not required in order to bid on maintenance contracts; bidders are presumed qualified to bid on such contracts. However, as noted in the Bid Solicitation Notice for the RFP, “certain maintenance contracts will contain specific requirements for maintenance contractor eligibility” if deemed necessary by the Department. This is such a maintenance contract. Section 7.1 of the RFP required the Department to determine whether the proposer is “qualified to perform the services being contracted.” That determination was to be made “based upon the[] Proposal Package demonstrating satisfactory experience and capability in the work area.” The RFP did not specify when or by whom this determination was to be made. The Department and DBI contend that the determination required by Section 7.1 is essentially a determination of whether the bidder is responsible, and that the determination is to be made by the evaluators during their scoring of the proposals. In support of that contention, the Department and DBI refer to Section 17.1 of the RFP, which provides that “[p]roposing firms must receive an average technical proposal score of at least (70) percent of the maximum attainable points established for scoring the Technical Proposal to be considered responsive.” Similar language is included in Section 8.2 of the RFP under the heading “Responsiveness of Proposals.” The interpretation of the RFP advocated by the Department and DBI is reasonable, and DBI’s proposal received an average score from the evaluators of 85.40, which exceeds the 70 percent threshold in Section 17.1 of the RFP. Indeed, each of the evaluators gave DBI more than 70 points for its technical proposal. The preponderance of the evidence presented at the final hearing supports the Department's implicit determination that DBI is “qualified to perform the services being contracted,” as required by Section 7.1 of the RFP. DBI has a 29-year history. It employs approximately 700 employees in 34 offices nationwide; it is the largest vegetation management company in the world; and it is ranked in the top five nationally in Pavement Maintenance Magazine. Even though DBI has less experience in comprehensive asset management contracts than does ICA, DBI has extensive experience in managing comprehensive activities under large contracts. DBI has managed over $400 million in performance- based contracts nationwide, including a $9 million comprehensive asset management contract with the Department in District 4 (US 27/Belle Glade area), and DBI’s director of asset management has extensive experience in highway and facility asset management in the private sector with DBI and VMS and in the public sector with the New York Department of Transportation. In sum, a determination that DBI is a responsible bidder was inherent in the Department’s decision to award the contract to DBI, which was based in large part on the technical score of its proposal by the evaluators, and the evidence presented in this de novo proceeding supports that determination. Therefore, even if, as ICA argues, the Department and DBI are improperly construing the word “responsive” in Section 17.1 of the RFP to mean “responsible,” ICA failed to prove that such error is material to the outcome of this proceeding. Failure to Prepare Technical Summary Section 17.1 of the RFP describes the evaluation process as follows: A Technical Evaluation Committee . . . will be established to review and evaluate each Proposal Package submitted in response to this Proposal Solicitation. The Committee will be comprised of at least five persons with background, experience, and/or professional credentials in relative service areas. The District Contracts Office will distribute to each member of the Committee a copy of each technical proposal. The Committee members will independently evaluate the Proposals on the criteria in the section below entitled “Criteria for Evaluation” in order to ensure that the Proposals are uniformly rated. The Committee will then assign points, utilizing the technical evaluation criteria identified herein and complete a technical summary. . . . . (Emphasis supplied). The District Contracts Office and/or the Project Manager/Technical Evaluation Committee will review and evaluate the price packages and prepare a summary of its price evaluation. Points will be assigned based on price evaluation criteria identified herein. During the process of the evaluation, the District Contracts Office will conduct examinations of Proposals for responsiveness to requirements of the Proposal Solicitation. Those determined to be non- responsive will be rejected. ICA contends that the evaluation committee failed to prepare a “technical summary,” which would have brought to light the scoring issues discussed below concerning Ms. Perry. The RFP does not define “technical summary” nor does it specify the form that the summary must take. The RFP does not specify how the evaluation committee as a whole would assign points to the proposals in light of the independent scoring mandated by Section 17.1 of the RFP. The evaluators did not assign points to the proposals as a committee, but rather independently scored the proposals. The evaluators did not meet as a committee to prepare a “technical summary.” Several of the evaluators testified that they considered the evaluation form that they completed for each proposal to be their “technical summary” for the proposal because the form included the scores assigned in each technical review category and summary comments about the proposal. The evaluators did not collectively discuss their scoring of the proposals after they completed their independent evaluations; they simply submitted their completed evaluation forms to Ms. Sanchious. Ms. Sanchious’ office prepared a spreadsheet summarizing the evaluators’ technical scoring of the proposals. The spreadsheet -– Joint Exhibit 33, titled “Proposal Evaluation/Breakdown Sheet” -- lists the scores awarded by each evaluator in each technical review category; calculates the total points awarded by each evaluator for each proposal; and calculates an “overall score” for each proposal by averaging the five evaluators’ scores for each proposal. This spreadsheet is more akin to a “technical summary” than is Joint Exhibit 21, which DBI and the Department contend is the “technical summary.” Indeed, Joint Exhibit 21 only includes the “overall score” and not the underlying data that was used to calculate that score. It was not unreasonable for the Department to calculate an “overall score” for each proposal by simply averaging the five evaluators’ scores for each proposal, and ICA failed to prove that the averaging being done by Ms. Sanchious’ office (instead of the evaluation committee) was a material deviation from the RFP. Indeed, ICA’s contention that discussion amongst the evaluation committee members to prepare the “technical summary” would have changed Ms. Perry’s scoring of ICA’s or DBI’s proposal is speculative, at best, in light of the findings below. In sum, the evaluation committee’s failure to prepare a “technical summary” as required by Section 17.1 of the RFP does not undermine the proposed award to DBI. Scoring by Jennifer Perry Ms. Perry was one of the five evaluators who reviewed the technical proposals submitted in response to the RFP. Ms. Perry is a licensed professional engineer. She has 10 years of work experience with the Department, and she currently serves as the assistant maintenance engineer for District 1. In that capacity, she is responsible for all forms of maintenance contracting in District 1, including routine maintenance and asset maintenance. Ms. Perry served for a time as the project manager for the existing asset management contract for I-75, which was held by ICA. As a result, she had the occasion to work with ICA employees and become familiar with ICA’s performance under that contract. There is no evidence that Ms. Perry is biased against ICA in any way. Indeed, she credibly testified that she had a good working relationship with ICA; that she had no major issues with ICA’s performance under the existing contract; and that she would have had no hesitation recommending that the contract be awarded to ICA if its proposal had received the highest score. Ms. Perry was heavily involved in the preparation of the RFP as a result of her position as assistant maintenance engineer for District 1. She was also involved in the selection of the evaluators. There is no Department rule or policy that prohibits a person from serving as an evaluator if he or she was involved in the preparation of the RFP. Likewise, the fact that Ms. Perry served as the project manager for the asset management contract held by ICA does not preclude her from serving as an evaluator. Indeed, Section 17.1 of the RFP specifically contemplates that the evaluators will have “background, experience, and/or professional credentials in relative service areas.” Similar language is contained in Section 287.057(17)(a), Florida Statutes. Ms. Perry spent between 10½ and 11 hours reviewing and scoring the proposals. She made detailed notes while she was scoring in order to capture her general impressions of each proposal and to serve as a reminder of issues to address with the vendor who was ultimately awarded the contract. Ms. Perry gave ICA’s proposal a score of 74. She gave DBI’s proposal a score of 86. Ms. Perry double-checked her scores before submitting her completed score sheets. She specifically went back over her scoring of ICA’s proposal after she noticed that she scored ICA lower than DBI and VMS because she thought she may have added wrong or overlooked something. She decided not to make changes to give ICA additional points just because she liked working with ICA. The main difference in Ms. Perry’s scoring of DBI's and ICA's proposals relates to Plan for Compliance with Standards (Plan for Compliance) section. She gave ICA 10 points for that section, and she gave DBI 20 points, which is the maximum available for that section. Each of the other evaluators gave ICA and DBI very similar scores in the Plan for Compliance section. The Plan for Compliance section describes the programs that the proposer intends to implement to ensure compliance with the applicable statutes, rules and Department policies. A proposer’s quality assurance/quality control (QA/QC) program is an important component of its plan for compliance. DBI gave the Plan for Compliance section significant emphasis because of the weight assigned to the section in the RFP. Ms. Burlarly-Hyland rewrote the section to make it more detailed because of her perception of its importance to the Department. ICA did not place as significant of an emphasis on the Plan for Compliance section in its proposal as did DBI. Indeed, ICA’s position in this case is that “a plan for compliance is quite standard and one would expect to see very similar plans and therefore very similar scores among the proposals.” DBI references its QA/QC program several times in the Plan for Compliance section, but the detailed description of the QA/QC program is included in the Management and Technical Plan section of DBI’s proposal. Ms. Perry relied on the description of the QA/QC program in the Management and Technical Plan section of DBI’s proposal in her scoring of the Plan for Compliance section. Similarly, in her scoring of the ICA and VMS proposals Ms. Perry did not limit her scoring of a particular section of the proposal to information presented in that section. Instead, she looked at the proposals in their entirety and “gave them credit . . . in any section that [she] felt it applied to because . . . [i]f they have a good idea, they need credit for it.” Ms. Perry explained that that she scored DBI higher than ICA in the Plan for Compliance section because, even though both proposals discussed their QA/QC program, DBI went into much greater detail about its program and its plan for compliance generally. Ms. Perry viewed the level of detail provided by DBI regarding its QA/QC program and its plan for compliance generally as an indication of the importance of these matters to DBI. Some of the material differences identified by Ms. Perry were DBI’s commitment to do its first QA/QC within the first three months instead of waiting six months as ICA proposed; DBI’s identification of a high-level person, the project manager, as being responsible for compliance; DBI’s commitment to provide its QA/QC reports directly to the Department; DBI’s “corporate culture concept” program that is similar to the Department’s “grassroots” program; DBI’s more detailed description of its training programs; and DBI’s commitment to have all of its herbicide applicators licensed by the state, not just in compliance with state law. Ms. Perry’s rationale for her scoring differences on the Plan for Compliance section is generally consistent with another evaluator’s “overall impression” that “the ICA proposal did not offer a lot of new innovation or continuous quality improvement over the level of performance that we had already experienced and . . . we were hoping to have in reletting the new contract rather than renewing the existing contract ”5 ICA also takes issue with Ms. Perry’s scoring of the ICA and DBI proposals in the DBE/RESPECT/Agency Participation section; the Proposed Facilities Capabilities section; the Routine/Periodic Maintenance Operations section; and the Rest Area Maintenance Operations section. Ms. Perry gave DBI’s proposal five points and ICA’s proposal three points for the DBE/RESPECT/Agency Participation section. She explained that she scored DBI higher than ICA in this section because DBI provided more detail on how it would help develop disadvantaged business subcontractors, including training them on compliance with Department standards and helping them obtain work. She recognized that ICA also had a subcontractor development program, but she was more impressed with DBI's proposal because “DBI really went into a lot more detail in what they were going to do.” Ms. Perry gave DBI’s proposal five points and gave ICA’s proposal three points for the Proposed Facilities Capabilities section. She explained that she scored DBI higher than ICA in this section because of the amount and type of equipment that DBI was going to make available for the contract and because of DBI’s commitment to put an office on the Alligator Alley corridor. Ms. Perry felt that the Alligator office was “very important” because that area is isolated and having an office in the area would make it easier for the contractor to respond quickly to problems. ICA’s proposal did not commit to put an office on the Alligator Alley corridor. Ms. Perry gave DBI’s proposal ten points and gave ICA’s proposal six points for the Routine/Periodic Maintenance Operations section. She explained that she scored DBI higher than ICA in this section because DBI’s proposal included a week- by-week maintenance plan that detailed the specific activities that DBI would be working on each week and it also included detailed charts identifying the efforts that DBI would undertake to meet the requirements of the Department’s maintenance program. The description of the maintenance plan in ICA’s proposal was not nearly as detailed, and Ms. Perry was so impressed with DBI’s maintenance plan that she provided copies of the plan to the other districts’ operation centers as an example of the type of detained planning that she felt the Department should move towards. Ms. Perry scored ICA and DBI the same for the Rest Area Maintenance Operation section. She explained that even though the proposals focused on different aspects of their rest area maintenance plans, the plans were roughly equivalent overall. For example, DBI committed to maintain the rest areas in accordance with the Department’s standard maintenance requirements and, like ICA, DBI will handle customer comment cards from rest areas through its QA/QC program. Ms. Perry scored ICA higher than DBI in areas that she found ICA’s proposal to be better than DBI’s proposal. For example, in the Identification of Key Personnel Section, she gave ICA four points and DBI three points; in the Contractor Experience section, she gave ICA the maximum five points and DBI two points; in the Bridge Inspection section, she gave ICA the maximum 10 points and DBI seven points; in the Incident Response Operations section, she gave ICA nine points and DBI eight points; and in the Bridge Maintenance Operations section, she gave ICA the maximum five points and DBI three points. Ms. Perry’s explanation of her scoring decisions was reasonable and supported by the preponderance of the evidence presented at the final hearing. The evidence fails to establish that Ms. Perry's scoring of the proposals was arbitrary, capricious, or otherwise improper.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department issue a final order dismissing the Formal Protest Petition filed by ICA, and awarding Contract No. E1G23 to DBI. DONE AND ENTERED this 14th day of December, 2007, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of December, 2007.
Findings Of Fact The Florida Department of Transportation (DOT) is required by state and federal law to ensure that a certain percentage of funds available for construction, design and consulting service contracts be provided as opportunity for utilization by small business concerns owned and controlled by socially and economically disadvantaged individuals (DBEs). DBE contract goals are established by the DOT for each construction contract. Every bidder must submit a form to the DOT which either documents compliance with the DBE contract goal or, if compliance is not met, must provide sufficient information to demonstrate that good faith efforts were made by the bidder to meet the goal. Prior to June of 1984, it was the practice of the DOT to allow contractors ten days after the bid letting to correct their DBE forms or to submit their good faith effort documentation. After holding numerous workshops throughout the State, the DOT amended its rules relating to participation by disadvantaged business entities. As pertinent to this proceeding, the amendment requires that all DBE documentation be submitted at the time of the submission of the bid proposal. Bidders are notified that: ".... Failure to satisfy these requirements shall result in a contractor's bid being deemed nonresponsive and the bid being rejected." Rule 14-78.03(2)(b)4, Florida Administrative Code. This rule became effective on May 23, 1984. All prequalified bidders were mailed a copy of the rule amendments prior to their effective date. Petitioner received a copy of the new rule prior to May 23, 1984. By notice dated June 28, 1984, contractors were advised that sealed bids would be received on July 25, 1984, on various road projects. The bid documents advised that the DBE goal for Project Number 50020-3516 was 10 percent. Form 932-10 entitled "Disadvantaged/Women Business Enterprise Utilization Affirmative Action Certification" advised bidders that Form 1 is required to accompany the bid documents. The specifications for Job Number 50020-3516 contain extensive provisions with regard to compliance with the DBE contract goals. Among these provisions is the following language contained in Section 2-5.3.2: "... Award of the Contract shall be conditioned upon submission of the DBE and WBE participa- tion 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." (Emphasis added.) The specifications lists as grounds for disqualification of bidders "failure to satisfy the requirements of 2-5.3." On July 25, 1984, Petitioner submitted a bid in the amount of 8171,370.51 for Job Number 50020-3516. Attached to the bid was Form 932-10 and Form No. 1, the latter indicating that petitioner's proposed utilization of DBEs was 7.6 percent of the total contract amount. While noting that two other DBEs were contacted without success, petitioner provided no further documentation regarding its good faith efforts to comply with the 10 percent contract goal. Three contractors submitted bids on this project. The next lowest bidder was Baxter Asphalt & Concrete, Inc., which submitted a bid of $191,540.92 and demonstrated compliance with the DBE contract goal. The third bidder, Capital Asphalt, Inc., submitted a bid of $204,651.35, fell below the 10 percent DBE contract goal and, like the petitioner, failed to demonstrate that it made a good faith effort to comply. The DOT engineer's estimate on this project was approximately $147,000.00. By notice dated August 17, 1984, the DOT advised that all bids received on Job Number 50020-3516 had been rejected. Two reasons were given for the rejection: that "the low bidder failed to meet DBE Contract Requirements" and that "awarding to the second low bidder is not in the best interest of the State." During June, July, and August following the adoption of the new rules regarding DBE requirements, it was the general policy of the DOT Awards Committee to reject all bids on a project if the low bidder failed to meet DBE requirements and there was more than a one percent difference between the first and second low bids. Beginning in September or October, 1984, this policy was changed to one of awarding to the second or third most responsible bidder as long as the bid was within the State estimate. Consequently, the DOT has now determined to award this challenged bid to Baxter Asphalt & Concrete, Inc. In another bid letting occurring on May 30, 1984, on Project Number 55160-3517, petitioner failed to submit with its bid proposal the forms for demonstrating compliance with the DBE requirements. By letter dated May 30, 1984, and received on June 4, 1984, petitioner was advised to forward, without delay, the necessary Form No. 1. The Form returned by petitioner showed 8 percent DBE participation. Since the contract goal was 10 percent, petitioner was afforded another opportunity to comply, did comply and receive approval on June 11, 1984, and was later advised that yet another DBE form needed to be completed. On July 17, 1984, petitioner received a letter from the DOT advising that the contract had been awarded to petitioner as of July 16, 1984. For all bid lettings occurring since June or thereafter, the DOT has rejected bids from contractors who have not submitted evidence with their bid proposal of either DBE compliance or a good faith effort to comply. New forms have been utilized to require such submittals with the bid proposal and removing the prior 10 day grace period language. Also, on August 22, 1984, the DOT sent a "Notice to All Contractors" that: "... all submittals for evaluating Good Faith Efforts in meeting DBE/WBE goals must be submitted with the bid proposal in order to be considered for award of the contract. Failure to submit the Good Faith Effort documentation with the bid may result in rejection of the bid."
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that a Final Order be entered rejecting as non-responsive the bid submitted by petitioner on Job Number 50020-3516, and awarding the contract to Baxter's Asphalt & Concrete, Inc. Respectfully submitted and entered this 27th day of February, 1985, in Tallahassee, Florida. DIANE D. TREMOR 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 27th day of February, 1985. COPIES FURNISHED: Michael P. Bist, Esquire 300 Lewis State Bank Building Tallahassee, Florida 32301 Larry D. Scott, Esquire Haydon Burns Building, MS-58 Tallahassee, Florida 32301-8064 Frank A. Baker, Esquire 204 Market Street Marianna, Florida 32446 Paul Pappas, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301
Findings Of Fact On August 22, 29, and September 5, 1994, Respondent, School Board of Dade County (School Board), advertised for bids for Project No. KS-0004, Roof Repair/Replacement and Asbestos Removal at American Senior High School. The advertisement stated that "The mechanical and electrical trades have been set aside to be performed by a minority-owned and operated firm." The advertisement made no mention of any requirement that the set-asides were to be performed by minority-owned and operated firms certified by Dade County Public School/Division of Business Development and Assistance (DBDA). The bid and contract documents which were delivered to all interested bidders including Petitioner, Murton Roofing Corporation (Murton), contained page 00030-2 providing various definitions, including the definition of "minority owned and operated business participation" as follows: MINORITY OWNED AND OPERATED BUSINESS PARTICIPATION - This bid is limited to those individuals and businesses (51 percent) owned and controlled by African-American, Hispanics, and Women which are so listed by the Dade County Public Schools/Division of Business Development & Assistance prior to bidding, or to provide sufficient data to verify and certify such ownership and control at the time of the bid. Award will be made to the low bidder meeting this and other project specifications and requirements. Page 00030-2 had been included in the project specifications section dealing with legal advertisements. By addendum issued September 8, 1994, the School Board deleted this page from the bid documents. Section I A of the Special Provisions, page 1 defines Minority/Women Business Enterprises as follows: Any legal entity which is organized to engage in commercial transactions and which is at least 51 percent owned and controlled by minority persons. Minority person means a person who is a citizen or lawful permanent resident of the United States and who is: An African American, a person having origins in any of the black racial groups of Africa; An hispanic, a person of Spanish or Portuguese culture including, but not limited to persons with origins in Mexico, South America, Central America or the Caribbean Islands regardless of race. A woman. The Project Manual defines a "M/WBE Certification Application" as a "statement signed by an M/WBE contractor, containing certain information with respect to the ownership and control of the firm (See Attachment B-FM 3920)." Page 16 of the Project Manual states that "[a]t any time there is a change in ownership or control of the firm, the M/WBE shall, immediately following the change, submit a new M/WBE Certification Application." Page 2 of Section 1 A of the Special Provisions provides: A subcontractor is qualified to do specific work if it meets all of the following criteria: It has or is able to obtain any and all bonds, insurance and licenses required to do such work; It has the necessary experience, financial ability, organization, technical qualifications, skill and facilities to do such work; It is able to comply with the performance schedule reasonably needed for such work; It does not have an unsatisfactory record of integrity, judgment or performance; It is able to meet the applicable equal employment opportunity requirement if stipulated; and It is not otherwise ineligible to perform such work under applicable law and regulations. Nothing delineated herein shall be interpreted to waive the requirement that the Subcontractor be legally licensed and certified at the time it is scheduled to perform such work. Section III, titled Bid Documents, Section III A, Submittals, states: As a condition of responsiveness, all bid submittals shall contain the documents and information required below. Non-submittals or incomplete submittals shall be cause for finding a Bidder nonresponsive and for the contract not to be awarded to the Bidder. Failure to submit completed forms and other required information, within the time period specified, can neither be cured by supplementary submittals and testimony at hearings, nor shall the nonresponsiveness of the bid be waived, negotiated or compromised. In its bid, Murton listed Goral Enterprises (Goral) as the subcontractor for the mechanical work on the project. Murton indicated on the subcontractor list that Goral was a woman business enterprise. At the time that Murton submitted its bid, Goral was not certified as a M/WBE by DBDA and Murton did not submit with its bid an application from Goral for certification as a M/WBE by DBDA. Goral was certified as a Disadvantaged Business Enterprise (DBE) by Metropolitan Dade County's Department of Business and Economic Development. Murton relied on Goral's DBE certification to met the M/WBE requirements of the project specifications. The DBE program is a separate program from the School Board's M/WBE program. The School Board does not give reciprocity to contractors who are certified as DBE's for acceptance in the School Board M/WBE program. Goral had been denied certification as an MBE by the Commission on Minority Economic and Business Development approximately two weeks prior to Murton submitting its bid for the project. The project specifications do not state that a contractor certified as a DBE will be deemed to meet the criteria of a M/WBE. Intervenor, A-1 Duran Roofing, Inc., also submitted a bid on the project; however, its bid was rejected as nonresponsive. By letter dated October 13, 1994, the School Board advised Murton that it was not in compliance with the special provisions of the project specifications because Goral was neither certified as a M/WBE nor had certification pending; therefore Goral could not be used to meet the M/WBE requirements for the mechanical work on the project. By letter dated October 14, 1994, Murton requested a meeting with the Contract Administrator to discuss the Notice of Noncompliance issued the day before. A meeting was held on October 18, 1994. On October 21, 1994, the School Board issued a Final Notice of Noncompliance. On October 26, 1994, the School Board issued a Revised Final Notice of Noncompliance, wherein it inaccurately stated that the legal advertisement required that the M/WBE's be certified by the DBDA at the time of submittal or that the bid submittal contain sufficient data to verify and certify M/WBE qualification. However, the Revised Final Notice of Noncompliance also stated that the bid document when read as a whole required that the M/WBE be either certified or pending certification at the time of bid submittal or that a certification application be submitted with the bid. The notice stated that Goral did not meet the requirements of the bid documents for a M/WBE. Murton requested an appeals hearing before the Certification Appeals Committee (Committee). The hearing was convened on October 26, 1994, at which time it became apparent to the Committee that the October 21, 1994 letter contained an error in that the paragraph stating that M/WBE's must be certified by the DBDA prior to bidding or provide sufficient data to verify or certify such ownership and control at the time of bid had not in fact appeared in the advertisement and the second page of the advertisement in the project manual which represented that this language had been a part of the advertisement had been removed by addendum. The meeting was recessed in order to review and obtain clarification of documentation presented by Murton. The Committee reconvened on November 15, 1994. At that time, upon reviewing the project manual and other documentation, the Committee determined that the language remaining in the Project Manual, read as a whole, did require DBDA certification and voted to uphold the determination of noncompliance. The School Board has interpreted similar project specifications to require that the proposed M/WBE be certified by DBDA at the time of bid submittal or that the bidder submit sufficient data with the bid to be able to determine whether the entity qualifies as a M/WBE. Such data is to be submitted on the application form contained in the project specifications as Attachment B- FM 3920, which is the form used by DBDA for application for certification as a M/WBE. The School Board has on numerous occasions rejected bidders for failure to submit either currently certified M/WBE's as subcontractors or for failure to submit an application for DBDA certification for the subcontractor with the bid. School Board Rule 6Gx13-3G-1.02 delineates the objectives for its M/WBE program. The rule states that the program's objectives may be accomplished by affirmative actions which include set aside contracts, subcontracting goals, prime contracting and designated scopes of work. In the instant case the School Board had designated certain portions of the work of the project to be performed by M/WBE firms. School Board Rule 6Gx13-3G-1.02 IV. provides: In order to ensure that business firms seeking to participate in the M/WBE Program are at least fifty-one (51) percent legitimately owned, operated and controlled by minorities, each M/WBE firm shall be required to be certified as to its minority ownership at the time of each bid award. Such certification shall be on the basis of a completed M/WBE Certification Application with supporting documentation, submitted by the firm, sworn to by an officer of the firm, invest- igated and verified by the Division of Business Development and Assistance, prior to any contract award. The School Board desires to rebid the project. On January 9, 1995, the School Board placed a new legal advertisement for bid on the project, specifically indicating that it would require and accept only DBDA certified M/WBE's.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered dismissing the Murton Roofing Corporation's Petition and rejecting all bids for the project and rebidding the project. DONE AND ENTERED this 1st day of March, 1995, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 1st day of March, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-6919 To comply with the requirement of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Paragraphs 1-5: Accepted in substance. Paragraph 6: Accepted that Goral was certified as a DBE but rejected that DBE certification meant that Goral was qualified as a M/WBE. Paragraphs 7-11: Accepted in substance. Paragraph 12: Accepted that that portion was deleted, but rejected to the extent that it implies that section was the only portion of the bid documents relied upon by the School Board. Paragraphs 13-15: Rejected as not necessary. Paragraph 16: Accepted in substance. Paragraph 17: Rejected as constituting argument. Paragraph 18: Accepted to the extent that that was his testimony. Paragraphs 19-22: Accepted in substance. Paragraphs 23-24: Rejecting as constituting argument. Paragraphs 25-26: Rejected as subordinate to the facts actually found. Paragraph 27: Rejected as constituting argument. Paragraph 28: There is no paragraph 28. Paragraph 29: Rejected as constituting argument. Paragraphs 30-31: Rejected as not supported by the greater weight of the evidence. Respondent's Proposed Findings of Fact. Paragraphs 1-3: Accepted in substance. Paragraph 4: The first two paragraphs are rejected as unnecessary. The remainder is accepted in substance. Paragraphs 5-10: Accepted in substance. Paragraphs 11-12: Rejected as constituting argument. Paragraph 13: Rejected as subordinate to the facts actually found. Paragraph 14: The first sentence is rejected as constituting argument. The second sentence is accepted in substance. COPIES FURNISHED: Vincent F. Vaccarella, Esquire Elder & Kurzman Grand Bay Plaza, Suite 702 2665 South Bayshore Drive Coconut Grove, Florida 33133 Phillis O. Douglas Board Attorney Dade County Public Schools School Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132 Steven M. Rosen, Esquire 5601 Building 5601 Biscayne Boulevard Miami, Florida 33137 Octavio J. Visiedo, Superintendent Dade County School Board 1450 Northeast Second Avenue, #403 Mimai, Florida 33132-1308 Frank T. Brogan Commissioner of Education The Capitol Tallahassee, Florida 32399-0400
