The Issue The issue in this proceeding is whether the proposed award of a contract to PCL Civil Contractors, Inc. ("PCL"), for the rehabilitation of the Jewfish Creek Bridge in Monroe County, Florida violates Section 120.57(3), Florida Statutes (1997). (All chapter and section references are to Florida Statutes (1997) unless otherwise stated.)
Findings Of Fact On September 24, 1998, Respondent issued an invitation to bid ("ITB") on a proposed contract for the rehabilitation of the Jewfish Creek Bridge in Monroe County, Florida. The ITB identified the project as Financial Project No. 250533-1-52-01 and contract number E-6844. Respondent budgeted $707,323 for the project and established two disadvantaged business enterprise ("DBE") goals. Eight percent of the total amount actually expended for the project was reserved for non-minority female DBEs. Four percent of the total project expenditure was reserved for Black American DBEs. On October 1, 1998, five bidders submitted bids. Petitioner submitted the lowest bid in the amount of $855,899.74. PCL submitted the second lowest bid of $940.471.50, and Coastal submitted the third lowest bid of $951,071.11. The fourth and fifth lowest bids were submitted by M&J Construction Co. ("M&J") and by The Walsh Group dba Archer Western ("Archer"). The respective bids of M&J and Archer were $1,100,471.88 and $1,149,000. Respondent determined that the bids from M&J and Archer were non-responsive. Neither M&J nor Archer protested Respondent's determination, and Respondent's determination is not at issue in this proceeding. Respondent proposes to award the contract to PCL as the second lowest bidder. Respondent proposes that the bid submitted by Petitioner is non-responsive because it does not meet established DBE goals; and because it fails to demonstrate Petitioner's good faith effort to meet applicable DBE goals. In addition, Respondent proposes that the bids submitted by PCL and Coastal are responsive because each meets applicable DBE goals for the project. It is uncontroverted that Petitioner failed to meet applicable DBE goals. The issues for determination are whether Respondent's proposed evaluation of Petitioner's good faith efforts to meet applicable DBE goals and Respondent's proposed determination that PCL and Coastal met DBE goals is contrary to governing statutes, rules, and policies; and, if so, whether Respondent's proposed agency action is "clearly erroneous, contrary to competition, arbitrary, or capricious." Contrary to Applicable Statutes As a threshold matter, Respondent's proposed agency action is contrary to Section 120.57(3)(d)3. Section 120.57(3)(d)3 provides that if the subject of a protest is not resolved within seven days after the receipt of a formal written protest, "the agency shall refer the protest" to DOAH. (emphasis supplied) Petitioner first filed its formal protest of the proposed agency action on November 11, 1998. For reasons discussed hereinafter, Respondent did not refer the protest to DOAH within seven days. Rather, Respondent referred the protest to DOAH on May 20, 1999, approximately 190 days after the formal protest. On March 14, 1999, Respondent issued a second notice of intent to award the contract to PCL. Petitioner timely filed a second formal written protest on March 18, 1999. Respondent did not refer the matter to DOAH until May 20, 1999, approximately 33 days later. Unlike Section 120.57(3)(e), there is no provision in Section 120.57(3)(d)3 which authorizes Respondent to ignore the seven-day requirement upon stipulation by all of the parties. Even if such authority exists by implication in Section 120.57(3)(d)3, no evidence shows that the seven-day requirement in Section 120.57(3)(d)3 was waived by an express stipulation, written or oral, knowingly executed by all of the parties. Any stipulation would arise from a combination of implied statutory authority and tacit acquiescence or waiver by the all of the parties. Contrary to Applicable Rules Respondent's proposed evaluation of Petitioner's good faith efforts to comply with applicable DBE goals is contrary to Florida Administrative Code Rule 14- 78.003(2)(b)3.f.(IV), Rule 14-78.003(2)(b)6.c and d, and Rule 14-78.003(2)(b)f and h. (Unless otherwise stated, all references to rules are to rules promulgated in the Florida Administrative Code in effect on the date of this Recommended Order.) Rule 14-78.003(2)(b)3.f.(I)-(XI) prescribes the criteria by which Respondent must evaluate Petitioner's good faith efforts to meet applicable DBE goals. Rule 14-78.003(2)(b)3.f.(IV) requires Respondent to consider whether applicable DBE goals were met by the other bidders. Applicable DBE goals were not met by either PCL or Coastal. The information needed to consider whether PCL and Coastal met applicable DBE goals was included in their respective bids and available for Respondent's consideration in accordance with Rule 14-78.003(2)(b)3.f.(IV). Respondent did not consider the relevant information in the bids submitted by PCL and Coastal. Rather, Respondent merely accepted the conclusion of each bidder, on the face of its bid, that each bidder met applicable DBE goals. The PCL Bid The PCL bid contained two DBE utilization forms. One indicated an intent to subcontract $76,000, or approximately eight percent of the bid amount, to ABC Barricade Co. ("ABC") for traffic management. The other utilization form indicated an intent to subcontract $38,000, or approximately four percent of the bid amount, to TCOE Corporation ("TCOE") to furnish and install roadway steel. ABC is certified by Respondent as a non-minority female DBE, and TCOE is certified by Respondent as a Black American DBE, defined in Rule 14-78.002(18)(a)1. The bids of Petitioner and Coastal also included subcontracts with ABC. However, the amount of the subcontract in the PCL bid was approximately twice the amount of the respective subcontracts in the bids from Petitioner and Coastal. Of the $76,000 PCL was to pay to ABC, the PCL bid showed that $53,430, or approximately 70 percent, was designated for payment to off-duty law enforcement officers. The PCL bid did not specify whether ABC would perform a commercially useful function for the $53,430 earmarked for law enforcement or whether ABC would subordinate over 70 percent of its contract to a non-DBE, the law enforcement agency. Rule 14-78.003(2)(b)6.c authorizes Respondent to count toward the DBE goals achieved by PCL only those expenditures to DBEs that perform a commercially useful function. The rule states that a DBE such as ABC performs a commercially useful function when: . . . it is responsible for execution of a distinct element of the work of a contract and carrying out its responsibilities by actually performing, managing, and supervising the work involved. If ABC did not perform a commercially useful function, ABC would subordinate more than 49 percent of the subcontract work. In such a case, Rule 14-78.003(2)(b)6.d provides that none of the DBE subcontract amount may be counted toward the DBE goals for PCL. Respondent counted the ABC contract toward PCL's DBE goals without considering whether the ABC contract complied with the requirements in Rule 14-78.003(2)(b)6.c and d, pertaining to a commercially useful function and the subordination of more than 49 percent of the contract amount. Respondent has no authority under its rules to count the ABC contract toward PCL's DBE goals unless the contract complies with applicable requirements in Rule 14-78.003(2)(b)6.c and d. Respondent violated Rule 14-78.003(2)(b)3.f.(IV) by counting the ABC contract toward PCL's DBE goals without considering whether the ABC contract qualified under Rule 14- 78.003(2)(b)6 c and d. Respondent's proposed evaluation of Petitioner's good faith efforts to comply with applicable DBE goals is contrary to Rule 14-78.003(2)(b)6.c and d and Rule 14-78.003(2)(b)3.f(IV). The PCL subcontract with TCOE did not require TCOE to perform a commercially useful function. The vice-president of TCOE could not recall another project in which TCOE had ever furnished and installed roadway steel and did not recall any current jobs in which TCOE is performing such work. TCOE did not have a supplier lined up to supply the necessary steel. TCOE does not fabricate the particular type of steel required to be furnished and installed in this project. The vice-president for TCOE could not state a price for roadway steel which TCOE agreed to fabricate and supply to PCL. He could not state the factors TCOE used in preparing the estimate given to PCL. The square-foot price of the steel quoted by TCOE was between a half and a third less than the price quoted by the other two low bidders and approximately one third less than Respondent's average. In addition, the TCOE bid included 400 tons less than the other two bids. Respondent counted the TCOE contract toward PCL's DBE goals without considering whether the TCOE contract complied with the requirements in Rule 14-78.003(2)(b)6.c and d, pertaining to a commercially useful function and the subordination of more than 49 percent of the contract amount. Respondent has no authority under its rules to count the TCOE contract toward PCL's DBE goals unless the contract complies with applicable requirements in Rule 14-78.003(2)(b)6.c and d. Respondent violated Rule 14-78.003(2)(b)3.f.(IV) by failing to consider whether PCL's subcontract with TCOE could be counted toward PCL's DBE goals under Rule 14- 78.003(2)(b)6.c and d. Respondent's proposed evaluation of Petitioner's good faith efforts to comply with applicable DBE goals is contrary to Rule 14-78.003(2)(b)6.c and d and Rule 14-78.003(2)(b)3.f(IV). The Coastal Bid The bid submitted by Coastal included three DBE utilization forms. Coastal submitted one form indicating an intent to subcontract $44,992 to ABC, or approximately 4.7 percent of the project. The subcontract with ABC is not at issue. Coastal also indicated an intent to subcontract Jayaldon Enterprises, Inc. ("Jayaldon") and Acutec, Inc. ("Acutec") for separate types of roadway steel. Jayaldon and Acutec are each certified as a DBE. The contract amounts were $51,973.36 for Jayaldon and $97,823.22 for Acutec. Pursuant to Rule 14-78.003(2)(b)6.f, Respondent counted 60 percent of each contract, or $31,184.01 for Jayaldon and $58,693.93 for Acutec, toward Coastal's DBE goals. Jayaldon would not perform a commercially useful function within the meaning of Rule 14-78.003(2)(b)6.c. In addition, Jayaldon is a sales representative company for Florida Structural Steel and is not a regular dealer. A regular dealer is defined in Rule 14-78.002(15) to mean: . . . a firm that owns, operates, or maintains a store, warehouse, or other establishment in which the materials or supplies required for the performance of the contract are brought, kept in stock, and regularly sold to the public in the usual course of business. To be a regular dealer, the firm must engage in, as its principal business and in its own name, the purchase and sale of the products in question. A regular dealer in such bulk items as steel, cement, gravel, stone, and petroleum products does not need to keep such products in stock, if the dealer owns or operates the appropriate distribution facility. Brokers and packagers shall not be regarded as . . . regular dealers within the meaning of these rules. Jayaldon does not stock steel in a warehouse and does not fabricate steel. If Coastal had been awarded the contract, Jayaldon would have submitted an order to Florida Structural Steel and Florida Structural Steel would have fabricated the steel and shipped it directly to Respondent at the project site. Jayaldon would not have been responsible for execution of a distinct element of work by actually performing, managing, and supervising the work involved. Acutec is an electrical contractor and is not a regular dealer in roadway steel within the meaning of Rule 14- 78.002(15). Coastal contacted Acutec after the bids were submitted and asked Acutec to serve as a pass-through for supplying steel roadway floor. If awarded the contract, Acutec would have ordered the structural steel from an independent supplier, marked it up, and had the supplier ship the steel to Coastal. Rule 14-78.003(2)(b)6.h authorizes Respondent to count toward Coastal's DBE goals only prescribed expenditures from the Jayaldon and Acutec contracts. Pursuant to Rule 14- 78.003(2)(b)6.h.(I), Respondent is authorized to count only the fees or commissions charged by each company for assistance in the procurement of materials or supplies. However, Respondent did not count the expenditures in the contracts with Jayaldon and Acutec pursuant to Rule 14-78.003(2)(b)6.h. Pursuant to Rule 14-78.003(2)(b)6.f, Respondent counted 60 percent of the contested expenditures toward Coastal's DBE goals. Rule 14-78.003(2)(b)6.f authorizes Respondent to do so only if Jayaldon and Acutec are regular dealers. Neither Jayaldon nor Acutec is a regular dealer in roadway steel as defined in Rule 14-78.002(15). When Respondent counted 60 percent of the expenditures to Jayaldon and Acutec toward Coastal's DBE goals, Respondent violated Rule 14-78.003(2)(b)3.f (IV) by failing to consider whether Coastal met its DBE goals. Respondent's proposed evaluation of Petitioner's good faith efforts to comply with applicable DBE goals is contrary to Rule 14-78.003(2)(b)3.f.(IV) and Rule 14-78.003(2)(b)6.f and h(I). Contrary to Policy On February 9, 1994, Respondent issued a memorandum entitled, "Disadvantaged Business Enterprise Good Faith Efforts Review Committee" (the "Memorandum"). The Memorandum officially stated agency policy for the organization of the Good Faith Efforts Review Committee (the "Committee") and the Committee's review and recommendations concerning contractors' documentation of their good faith efforts to comply with DBE goals established by Respondent in a bid or request for proposal. The policy applies to local districts as well as the central office. The Committee consists of three primary and two alternate members. The chairperson is appointed by the director of administration. The other two members of the Committee are the manager of the minority programs office and an employee from the office of construction who is appointed by the director of construction. Alternate members are appointed by the director of administration and the director of construction. Prior to any meeting of the Committee, the minority programs office must prepare copies of relevant bid documents and other working papers to assist the Committee in its analysis. The Committee members then meet and review the bidders' good faith efforts in accordance with the criteria set forth in Rule 14-78.003(2)(b)3.f. The chairperson must prepare minutes to document the Committee meeting. At the conclusion of the meeting, a member of the Committee must write a Committee report. The report must include the Committee's recommendations and its rationale in support of the recommendations. The report must also include copies of all materials used by the Committee in its analysis. Each member of the Committee must sign the report. The Committee must distribute the report to all members of the technical review committee as well as the members of the contracts award committee. Respondent's review of Petitioner's good faith efforts was contrary to officially stated agency policy in the Memorandum. After the bids were opened and evaluated on October 1, 1998, Respondent's Contracts Administrator for District 6 prepared a memorandum to the Technical Review Panel. The memorandum summarized the bids and stated that the "lowest bidder has not met DBE goals. Second lowest bidder has met goals." The memorandum recommended that the contract be awarded to PCL. The memorandum, including its recommendation, was distributed to members of Respondent's technical review committee. Rather than conducting a meeting of the technical review committee, each member of the committee submitted a memorandum indicating whether to reject or to accept the recommendation to award the contract to PCL. The Contracts Administrator for District 6 distributed Petitioner's bid, including the evidence of Petitioner's good faith effort to meet DBE goals, only to Respondent's district compliance officer. When the District Compliance Officer received Petitioner's bid from the Contracts Administrator, the District Compliance Officer reviewed the documents with the Assistant District Engineer for District 6. The District Compliance Officer and Assistant District Engineer discussed and evaluated Petitioner's good faith submittal, but did not report their conclusion to other members of the technical review committee. Rather, the District Compliance Officer submitted a memorandum to the Contracts Administrator stating, "Quinn Construction did not meet the goal therefore it's my recommendation to reject their bid." The District Compliance Officer submitted the memorandum in the name of his supervisor concluding that "Quinn Construction did not meet DBE goals." On October 29, 1998, Respondent posted its notice of intent to award the contract to PCL. On November 2, 1998, Petitioner timely filed its notice of protest. On November 11, 1998, Petitioner timely filed its formal written protest of the notice of intent to award the contract to PCL. As a result of Petitioner's protest, District 6 determined that it should formalize the process by which it reviewed good faith effort submittals. The supervisor for the District Compliance officer appointed the District Compliance Officer and the Assistant District Construction Engineer to the newly created District 6 Good Faith Efforts Committee. By telephone conference, the three District 6 employees met with three individuals from Respondent's central office. The three individuals in the central office were the Manager of the Minority Programs Office, a representative of Respondent's administration office, and a representative of Respondent's office of construction. The manager of the minority programs office prepared minutes of the meeting. The minutes are in evidence in this proceeding. The participants in the telephone conference concluded that Petitioner's bid was non-responsive. The Committee based its conclusion on several grounds. The Committee determined that Petitioner did not solicit from 47 of 68 companies listed in the DBE Directory as doing the types of work being solicited by the prime contractor in the geographic area where the work was to be performed. The Committee also determined that Petitioner sent solicitation letters by fax rather than by certified mail. Finally, the Committee determined that the second and third low bidders achieved applicable DBE goals. On March 14, 1999, Respondent posted its second notice of intent to award the contract to PCL. On March 18, 1999, Petitioner timely filed its second protest of Respondent's proposed agency action. The first proposed evaluation of Petitioner's good faith efforts to comply with applicable DBE goals is contrary to officially stated agency policy in the Memorandum. The first District 6 good faith review committee did not include the three members required by agency policy. The committee did not receive required information in advance of the meeting. The committee neither prepared minutes of the meeting nor authored a report which included the committee's recommendations and supporting rationale. The committee did not otherwise disseminate its findings to the contracts awards committee or to the technical review committee. The second evaluation of Petitioner's good faith efforts to comply with applicable DBE goals was contrary to officially stated agency policy in the Memorandum. The Committee was not constituted in accord with membership requirements prescribed in the Memorandum. A member of the Committee did not write a report, and all of the Committee members failed to sign the required report. Copies of materials used by the Committee in its analysis were not attached to a report of the Committee. A report was not distributed to all members of the contract awards technical review committee and the contracts award committee. Minutes of the telephone conference conducted by the Committee were sent only to the minority programs office. The minutes were not disseminated either to the contracts awards technical review committee nor to the contract awards committee. After the telephone conference meeting of the Committee, a subsequent meeting of the technical review committee did not occur. The technical review committee received no further information for their consideration in voting whether to award or to reject the bid. Petitioner's Good Faith Efforts Petitioner's bid contains a DBE utilization summary form indicating an intent to subcontract with ABC in the amount of $38,000, or approximately five percent of the total project. Petitioner's bid also contains documentation of Petitioner's good faith effort to obtain additional minority participation. Both the DBE utilization summary form and the documentation of good faith efforts comply with the requirements of Rule 14-78.003(2)(b)3. In its bid, Petitioner submitted proof of solicitation of 26 qualified DBE firms. Each firm is listed in Respondent's monthly DBE Directory as performing work included in the project, either in Monroe County or statewide. In relevant part, Respondent's proposed evaluation of Petitioner's good faith effort to comply with applicable DBE goals states that Petitioner failed to contact 47 companies listed in the DBE Directory as doing work solicited by the contractor for the project. Of the 47 DBEs, 22 were maintenance or traffic subcontractors. Petitioner had a firm agreement with ABC. ABC was the same DBE used by PCL and Coastal. Another 17 of the 47 DBEs were painters who did not have the QP2 certification required for the project specifications. There was no reason for Petitioner to contact painters who were not QP2 certified. Another three of the 47 DBEs did not perform any item of work available on the project. Another four of the 47 DBEs had telephone numbers that were either disconnected or answered by different parties or entities. The remaining DBE was TCOE. TCOE was not interested in submitting a bid to Petitioner for this project. Rule 14-78.003(2)(b)3.f.(I) requires Respondent to consider whether a contractor contacts DBEs by certified mail. Although Respondent prefers that bidders contact DBEs by certified mail, Respondent does not require notice by certified mail. Petitioner provided reasonable notification to DBEs by fax. Petitioner included a fax log with its bid to show that the transmittals were successful. Petitioner selected economically feasible portions of the work to be performed by DBEs. Petitioner made all items in the contract available for subcontracting. Petitioner offered to assist DBEs in reviewing the contract plans and specifications. Petitioner submitted all quotations received from DBEs. Petitioner was not asked to assist any DBE in obtaining bonding, lines of credit, or insurance. Within the last six months, Petitioner has used DBEs on other contracts. Petitioner's utilization of DBEs has exceeded contract goals established by Respondent in each case.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order finding that Petitioner submitted the lowest responsive bid to Financial Project No. 250533-1-52-01 and that Respondent's proposed evaluation of Petitioner's good faith efforts to comply with applicable DBE goals is contrary to applicable rules and officially stated agency policies, and is clearly erroneous. DONE AND ENTERED this 3rd day of August, 1999, in Tallahassee, Leon County, Florida. DANIEL MANRY 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 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of August, 1999. COPIES FURNISHED: Thomas F. Barry, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Pamela Leslie, General Counsel Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450 Mike Piscitelli, Esquire 560 East Broward Boulevard Fort Lauderdale, Florida 33394 Suzanne Grutzner, Esquire 1321 77th Street East Palmetto, Florida 34221 Brian F. McGrail, Esquire Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0458 Daniel Te Young, Esquire Post Office Box 589 Tallahassee, Florida 32302-0589
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 The issue in this case is whether the Respondent, the Department of Transportation (DOT), should award State Project No. 89030-3528 to The Cone Corporation, notwithstanding the bid protest filed by the Petitioner, The Murphy Construction Co., alleging that its bid was responsive and lower than The Cone Corporation's bid or, in the alternative, if its bid was nonresponsive, that The Cone Corporation's bid also was nonresponsive, and that the project should be re-bid. 1/
Findings Of Fact State Project No. 89030-3528 (the project) is for work on SR Bridge No. 890941 over Warner Creek in Martin County. The DOT solicited bids for the work and established December 5, 1990, as the deadline for submission of bids. The DOT established, as its Disadvantaged Business Enterprise (DBE) goal for the project, a goal of ten percent participation by DBEs. The Petitioner, The Murphy Construction Co., submitted a bid for the work in the amount of $1,026,222.96. It was the apparent second lowest bid. The Tom Quinn Company, Inc., was the apparent low bidder, at $846,216.87, but it did not meet the ten percent DBE goal and did not demonstrate good faith efforts to achieve the goal. The next lowest bidder, after the Petitioner, was The Cone Corporation's bid of $1,083,672.95. There was one other bidder. The Petitioner asserted that $110,360, or 10.75%, of the work would be done by DBEs. The Petitioner alleged in its bid that $26,571 worth of DBE work would be done by Advance Barricades & Signing, Inc. (Advance Barricades). The Petitioner's DBE Utilization Form for Advance Barricades & Signing, Inc., identified the DBE by name but left blank the parts of the form designated "Item No." and "Description (note if item qualifies for SUPPLIER)". As a matter of agency policy, the DOT has required that the portion of the form designated as "Description (note if item qualifies for SUPPLIER)" be completed. A description of the work to be performed by the DBE has been considered essential. The DOT has required the description of the work to be performed by the DBE because: first, the DOT interprets the applicable rules to require it; and, second, because the purpose of the rule and policy is to enable the DOT's Minority Programs Office to monitor the performance of the contract to be sure that the representation as to DBE participation is carried out--i.e., not only that the representation as to the percentage of DBE work is met but also that the DBE does the work the contractor represents that the DBE will do. Monitoring is significant because it can prevent the bidder, if successful, from trying to take advantage of the DBE by asking the DBE to do work that the DBE is not prepared or equipped to do or by asking the DBE to do more work for the money than contemplated by the DBE at the time of the bid. It also can insure that bidders will not, in essence, pay a DBE for doing nothing. Although the Petitioner's DBE Utilization Form gave the name of the DBE, it did not purport to describe the work the DBE was going to do. Although listing the name Advance Barricades and Signing, Inc., identified some of the work Advance Barricades does, it did not identify all of the work Advance Barricades does and, more importantly, did not identify the work the Petitioner was proposing that Advance Barricades was to do on the project in question. The DOT could have assumed what work Advance Barricades would do for the Petitioner, but it could not effectively monitor based on the assumption. Sometimes a DBE subcontractor will complete and sign the DBE Utilization Form for the bidder. Sometimes, the DBE will telephone the bidder with its price, and the bidder will complete the form. In the latter case, if the form is completed, the DOT Good Faith Efforts Committee will, as a matter of policy, telephone the DBE to confirm the information. In this case, Advance Barricades provided the Petitioner with a written price for the work, but the Petitioner itself prepared and submitted a form for inclusion in its bid on the project and did not include Advance Barricades's written price. Because the Petitioner left blank the parts of the form designated "Item No." and "Description (note if item qualifies for SUPPLIER)", the Good Faith Efforts Committee did not telephone Advance Barricades to confirm or supplement the information submitted by the Petitioner with its bid. The Cone Corporation's bid also included the representation that Advance Barricades would be doing work on the job that would qualify towards the DBE goal. Under the part of the form designated "Description (note if item qualifies for SUPPLIER)," The Cone Corporation stated, "SEE ATTACHED." Attached to the form was a proposal from Advance Barricades giving specific item numbers and descriptions of temporary barricades and signing, advance warning arrow panels, flashing lights, temporary pavement markings, and special detour signing to be furnished at a price of $20,805.45. In this case, The Cone Corporation's bid included a copy of the Advance Barricades proposal, which provided an adequate description, including item numbers, of the work Advance Barricades would do for The Cone Corporation. Despite the reasons for the DOT policy described in the preceding finding, the DOT has slipped into a practice of not requiring that the portion of the DBE Utilization Form designated "Item No." be completed. In addition, one-word generalizations--such as "pipe" or "trucking"--in the part of the form designated "Description (note if item qualifies for SUPPLIER)"are accepted by the DOT even though they may be insufficient to enable the DOT's Minority Programs Office to determine what kind of pipe or trucking is meant. Indeed, the DOT would have accepted description "barricades and signing" in the Petitioner's case. But these descriptions are inadequate to serve the purpose of the rule that the DBE work be described in the bid documents. For example, the word "pipe," without item numbers, does not identify the type or quantity of pipe to be provided. Indeed, the DOT's DBE Utilization Form gives evidence that more of a description initially was contemplated by the DOT. The form provides a space designated "Item No." In addition, the part of the form provided for the description of the DBE work also states: "(note if item qualifies for SUPPLIER)." (Emphasis added.) The form infers that the description will include the item number. Otherwise, it would be very difficult, and in some cases impossible, for the Minority Programs Office to effectively monitor the progress of construction. In this case, The Cone Corporation's bid included a copy of the Advance Barricades proposal, which provided an adequate description, including item numbers, of the work Advance Barricades would do for The Cone Corporation. But its DBE Utilization Form for H.S. Thompson described $85,702 worth of DBE work as "concrete, rebar and pipe." Under the column marked "Item No.," The Cone Corporation put, "various." If H.S. Thompson were going to do all of the "concrete, rebar and pipe" on the project, it would have been doing more like $540,000 worth of work for The Cone Corporation. Like the Petitioner's DBE Utilization Form for Advance Barricades, the H.S. Thompson form was inadequate to serve the monitoring purposes of the DOT's policy. The DOT now is in the process of considering whether to amend its rules, perhaps to provide that all proposed DBE participation be confirmed by telephone in order to avoid outcomes like the one its Good Faith Efforts Committee, Technical Review Committee, and Contract Awards Committee recommended in this case--the rejection of a bid as nonresponsive in favor of a higher bid that proposes a smaller percentage of DBE participation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Respondent, the Department of Transportation, enter a final order rejecting all bids on State Project No. 46090-3511. RECOMMENDED this 12th day of March, 1991, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 12th day of March, 1991.
The Issue The ultimate issue for determination at formal hearing was whether the intended decision by the Florida Department of Transportation to award the bid on State Project No. 79002-3429, for construction of a highway project, SRI- 95/11th Interchange, in Volusia County, Florida, to PCL Civil Constructors, Inc., departs from the essential requirements of law.
Findings Of Fact The Florida Department of Transportation (Respondent) issued an Invitation To Bid (ITB) on State Project No. 79002-3429 (Project), construction of a highway project--SRI-95/11th Interchange in Volusia County, Florida. The project is 100 percent federally funded. On July 28, 1993, the bid letting was held. The apparent lowest bidder was Martin K. Eby Construction Co., Inc. (Petitioner), with a bid of $10,480,685.71, and the apparent second lowest bidder was PCL Civil Constructors, Inc. (Intervenor), with a bid of $10,794,968.22 1/ Included as a requirement of the bid by Respondent was a Disadvantaged Business Enterprise (DBE) goal of 12 percent. On its face, Petitioner's bid met and exceeded the DBE goal with an intended DBE utilization of 12.2 percent. However, one of Petitioner's DBEs, Gearing Engineering (Gearing), was not certified by Respondent as a DBE. Without Gearing, Petitioner fell short of the DBE goal. The bid specifications in the ITB provided in a section entitled "Special Provisions for Disadvantaged Business Enterprises" that only DBEs certified by Respondent at the time that the bid is submitted will be counted toward the DBE goal. At the time Petitioner submitted its bid, Gearing had for the first time filed an application with Respondent to be certified as a DBE. At no time prior to this had Gearing been certified as a DBE by Respondent even though it had received certification as a minority business from local government. By the bid letting, Gearing had not been certified as a DBE by Respondent. On July 29, 1993, representatives of Respondent contacted Petitioner to inform it of the DBE problem and to inquire about its good faith efforts to meet the DBE goal. Petitioner responded the same day by written communication indicating, among other things, that it had contacted Gearing about its DBE status and that Gearing informed Petitioner that Respondent's DBE office had informed Gearing that it was appropriate for Gearing to submit a proposal and that certification was required, not at the time of submitting the proposal, but at the time work began. In the communication, Petitioner offered to substitute two certified DBEs for Gearing if Respondent determined Gearing could not be used. Also, Petitioner included with its response a letter from Gearing outlining the communication it (Gearing) had had with Respondent. Petitioner is no stranger to Respondent's bid process as it has prequalified to contract with Respondent and has been doing business within the State of Florida full-time for approximately five and one-half years. 2/ At no time prior to submitting its bid, did Petitioner contact Respondent's DBE office to determine Gearing's DBE status. Petitioner depended wholly upon the representation made by Gearing. Petitioner's division manager, who approved Petitioner's bid proposal for submission, directed his subordinates to only use DBEs certified by Respondent and appearing in Respondent's DBE Directory (Directory) when Petitioner was attempting to reach a DBE goal set by Respondent in a bid. The subordinates knew that Gearing was not in the Directory but failed to inform the division manager of Geary's non-certificate, deciding instead to depend on the representation made by Gearing. Had the division manager known of Geary's non- certification, he would have chosen another DBE from the list of DBEs on his selection list that were certified. Once a business becomes certified by Respondent as a DBE, it is added to a list of certified DBEs maintained by Respondent. A printed list of Respondent certified DBEs--DBE Directory--is provided to bidders, prior to the submitting of bids, so that bidders will know what businesses are certified and when their current certification expires. If a business appears in the DBE Directory for a bid, even though its certification may be listed as expiring before the bid letting date, the business can be included as a DBE on the bid. This procedure is used by Respondent because a renewal application may have been timely filed by a certified DBE, but Respondent may not have completed its renewal process at the time of printing of the Directory or that Respondent may not have timely furnished a certified DBE with a renewal notice or may not have received notification by return receipt that the DBE had received the renewal notice. Therefore, the DBE is retained on the list during Respondent's review process. 3/ Even if a DBE is found by Respondent to no longer meet the DBE requirements, if that DBE was on the DBE Directory at the time of a bid submission and used by a bidder for a project, the bidder would not be penalized. Furthermore, a business not appearing on the DBE Directory may become certified after the list is printed, but before bid submission deadline, and, therefore, be eligible to submit a proposal to a bidder for the particular project named. The DBE Directory also contemplates this situation by directing bidders on the first page of the Directory to contact Respondent directly if the status of a business, as a certified DBE, is in question, whether the business is listed or not. Moreover, Respondent informs bidders in the front of the Directory, printed in noticeable type, i.e., all capitalizations and boldtype, that only DBEs certified by Respondent will be counted towards meeting Respondent's DBE goals. At no time did Respondent's DBE office inform Gearing that it could submit a proposal on the Project without first receiving certification from Respondent as a DBE. The testimony of Respondent's operations and management consultant in its DBE office, who is the individual with whom Gearing communicated, is credible that anyone inquiring about a business submitting a proposal as a DBE to a bidder must first be certified by Respondent as a DBE in order to submit proposals on Respondent's contracts. Further, Respondent's continuous practice and procedure is to require DBE certification before a business can submit a qualified proposal as a DBE. Moreover, it is readily apparent that there was a miscommunication between the principals (husband and wife) of Gearing, causing a misinterpretation of what Gearing could or could not do before being certified. The subordinate principal (husband) who directly communicated telephonically with the DBE office denied that the DBE office informed him that Gearing could submit a proposal as a DBE before it was certified; whereas, the majority principal (wife) believed that he (husband) had informed her that Gearing could submit a proposal as a DBE during the pendency of its DBE application and she so informed Petitioner. On August 4, 1993, Respondent's Good Faith Efforts Review Committee reviewed the bids, including Petitioner's documents submitted on July 29, 1993. Its recommendation was (a) to declare Petitioner's bid nonresponsive due to Petitioner not meeting the DBE goal and not being able to document a good faith effort in attempting to meet the goal and (b) to award the bid to Intervenor. When the DBE goal is not met, the bid specifications in the section entitled "Special Provisions for Disadvantaged Business Enterprises" provide that awarding the contract is conditioned upon the bidder demonstrating that good faith efforts were made to meet the goal, with the documentation being submitted with the bid. Furthermore, the said section enumerates what information will be considered in evaluating good faith efforts and provides that failure to show good faith efforts will result in disqualification of the bidder. The bid documents contain a DBE Utilization Summary form which displays a notice providing that, if the DBE goal is not met, documentation must be included with the bid to demonstrate good faith efforts to meet the DBE goal, and if they are not included, the bid may be considered nonresponsive. Although good faith effort documents are to be submitted with the bids, generally, they are not because a bidder believes the goal has been met, as evidenced by its DBE percentage. Consequently, no bidder has been able to document good faith efforts when a good faith effort question arises after bid submission. Petitioner did not submit good faith effort documents with its bid because it believed that it had met, and even exceeded, Respondent's DBE goal. On August 11, 1993, Respondent's Technical Review Committee reviewed the bids and the accompanying recommendation. It concurred with the recommendation of the Good Faith Efforts Review Committee. On August 17, 1993, Respondent's Contract Award Committee reviewed the bids and the recommendations. It concurred with the recommendation of the Technical Review Committee, i.e., declaring Petitioner's bid nonresponsive for failure to meet the DBE goal and awarding the contract to Intervenor. On September 3, 1993, Respondent posted its notice of intent to award the contract for the Project to Intervenor. Petitioner timely filed a protest to the intended action. Respondent has filed a proposed rule change which would change the way it handles bidders attempting to meet DBE requirements.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Department of Transportation enter its final order awarding State Project No. 79002-3429, for construction of a highway project, SRI-95/11th Interchange, in Volusia County, Florida, to PCL Civil Constructors, Inc. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 28th day of December 1993. ERROL H. POWELL 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 28th day of December 1993.
The Issue The issues in this cause are presented through a bid protest filed by Hobbs Construction questioning the notice of the Florida Department of Transportation which rejected all bids on State Project No. 49010-3543, Franklin County, Florida, in which Hobbs was the apparent low bidder. In particular, Hobbs challenges the rejection of its bid, wherein the Department has claimed that Hobbs has failed to meet the Disadvantaged Business Enterprise contract requirements.
Findings Of Fact On June 14, 1984, Hobbs Construction and Development, Inc., submitted an application for recognition by the State of Florida, Department of Transportation, to perform work for the department in an additional work class for which Hobbs had not previously qualified. On June 22, 1984, this request for qualification was approved as evidenced by the correspondence of that date from J. Ted Barefield, Chief of Bureau of Contracts Administration, Department of Transportation, addressed to Hobbs. A copy of that correspondence may be found as Petitioner's exhibit number two admitted into evidence. The Notice of Qualification was received by Hobbs on June 26, 1984. Having been recognized in the new classification, Hobbs was entitled to qualify as a bidder on Budget Item 3112655, which is also known as State Project No. 49010-3543, Franklin County, Florida. (Prior to the new classification or qualification of Hobbs, Hobbs was entitled to purchase the plans for the aforementioned job, but was not entitled to receive the actual bidding documents [specifications] related to the job.) On June 26, 1984, the date that Hobbs was informed of its qualification to pursue the subject job in Franklin County, it obtained the bid packet, job specifications, from the Department of Transportation. Even before qualification, Hobbs being interested in the Franklin County job made attempts on June 21, 1984, to contact Disadvantaged Business Enterprise subcontractors, known as DBE subcontractors, realizing that the contract called for participation by a DBE subcontractor(s). Glen Powell Contracting, Inc., Lynnhaven, Florida, and Bryan L. Therman Contractors, Inc., of Chipley, Florida, were among the DBE subcontractors which Petitioner was interested in and attempted to contact. It was contemplated that those contractors would perform the installation of rip rap which constituted a high percentage of the project work. Oglesby and Hugg, a DBE subcontractor, was also contacted about installation of rip rap and indicated that they were not interested in the project. The contact with Therman was by talking to someone in hips office, leaving a message for Therman to call the Hobbs representative. The Therman group did not make a return call. Glen Powell and another official within the Glen Powell corporation, reviewed the project with officials of Hobbs' Construction Company and indicated that Powell would not be able to give a quote for the subcontracting rip rap work given the nearness of the time to submit the bid. Powell had been reached on June 25, 1984, and made the assessment of the bid materials on June 26, 1984, at which point he declined to give a price quote for the subcontracting rip rap work. Several DBE grassing subcontractors were also contacted by Hobbs and declined to perform work given the location of the project and the small amount of grassing to be installed. When the bid was submitted by Hobbs, the only DBE subcontractor that was listed was Black Olive Nursery and Landscaping of 21053 N.W. 37th Court, Miami, Florida. That class of work was landscaping in the amount of 9,599.30, which is approximately .6 percent of the Hobbs bid proposal in the amount of $1,585,170.30. Hobbs submitted the bid on the Franklin County project in time to meet the June 27, 1984, bid opening. When the bids were opened, Hobbs bid reported above was the apparent low bid for the project. As was the custom of the Department of Transportation, its Contracts Awards Committee met to determine the acceptability of the bids for the Franklin County project and to decide whether to go forward with the project in the face of the bids offered. At that time, the committee being of the belief that Hobbs and the second low bidder both failed to meet DBE participation requirements of the contract and being persuaded of the need to modify the plans and revise the specifications related to the installation of rip rap it was decided to reject all bids. That decision was by unanimous vote of the Contracts Award Committee of the Department of Transportation and this advice was accepted by the agency head. A copy of the minutes of that committee, which reflects the decision of the committee, may be found as Department's exhibit number two. On July 24, 1984, Hobbs was noticed of the Department's intent to reject all bids for reason that the Department desired to revise the plans and specifications and in view of the fact that, according to the Department, Hobbs had failed to meet the DBE contract requirements. A copy of this Notice of Bid Rejection may be found as Petitioner's exhibit number one admitted into evidence. That notice affords an opportunity for Hobbs to challenge the bid rejection through request for a Chapter 120, Florida Statutes hearing. Hobbs timely availed itself of that opportunity leading to the formal hearing which is the subject of this recommended order. To meet the DOE requirements of the contract, it was necessary for Hobbs to designate 2 percent of the contract amount for DOE subcontractor participation. In the alternative, if Hobbs was unable to achieve that goal, it was necessary for Hobbs to provide sufficient information to show that it had made a good faith effort to meet the goal. The issues joined in this case concern whether Hobbs timely provided its explanation of its good faith efforts to obtain DBE participation in the project and if that explanation was provided in a timely fashion, whether it was sufficient information to demonstrate good faith compliance. Within the specifications, a copy of which is found as joint exhibit number one, there are found Supplemental Special Provisions dating from May 31, 1984. Subarticles 2-5.3.2 and 2-5.3.3, deal with the question of DBE participation and the need to submit good faith efforts. The language of those provisions is as follows: 2-5.3.2 Submittals for Contracts with Goals: For all contracts for which DBE and/or WBE contract goals have been established, each contractor shall meet or exceed or demonstrate that it could not meet, despite its good faith efforts, the contract goals set by the Department. The DBE and WBE participation information shall be submitted with the Contractors bid proposal. Award of the Contract shall be conditioned upon submission of the DBE and WBE participation information with the bid proposal and upon satisfaction of the contract goals or, if the goals are not met, upon demonstrating that good faith efforts were made to meet the goals. The Contractors bid submission shall include the following information (Submitted on Form No. 141-12 - DBE/WBE Utilization Form No. 1): The names and addresses of certified DBE and WBE firms that will participate in the contract. Only DBEs and WBEs certified by the Department at the time the bid is submitted may be counted toward DBE and WBE goals. A description of the work each named DBE and WBE firm will perform. The dollar amount of participation by each named DBE and WBE firm. 2-5.3.3 Submittals for Evaluating Good Faith- Efforts: If the DBE or WBE goal is not met, sufficient information to demonstrate that the Contractor made good faith efforts to meet the goals shall be submitted. In evaluating a contractor's good faith efforts, the Department will consider: Whether the Contractor, at least seven days prior to the letting, provided written notice by certified mail, return receipt requested, or hand delivery, with receipt, to all certified DBEs and WBEs which perform the type of work which the Contractor intends to subcontract, advising the DBEs and WBEs (a) of the specific work the Contractor intends to subcontract; (b) that their interest in the contract is being solicited; and (c) how to obtain information about and review and inspect the contract plans and specifications. Whether the Contractor selected economically feasible portions of the work to be performed by DBEs or WBEs, including where appropriate, breaking down contracts or combining elements of work into economically feasible units. The ability of a contractor to perform the work with its own work force will not in itself excuse a contractor's failure to meet contract goals. Whether the Contractor provided interested DBEs or WBEs assistance in reviewing the contract plans and specifica- tions. Whether the DBE or WBE goal was met by other bidders. Whether the Contractor submits all quotations received from DBEs or WBEs, and for those quotations not accepted, an explanation of why the DBE or WBE will not be used during the course of the contract. Receipt of a lower quotation from a non-DBE or non-WBE will not in itself excuse a contractor's failure to meet contract goals; provided, however, a contractor's good faith efforts obligation does not require a contractor to accept a quotation from a DBE or WBE which exceeds the lowest quotation received from any subcontractor by more than one percent. Whether the contractor assisted interested DBEs and WBEs in obtaining any required bonding, lines of credit, or insurance. Whether the contractor elected to subcontract types of work that match the capabilities of solicited DBEs or WBEs. Whether the Contractor's efforts were merely pro forma and given all relevant circumstances, could not reasonably be expected to produce sufficient DBE and WBE participation to meet the goals. Whether the Contractor has on other contracts within the past six months utilized DBEs and WBEs. The above list is not intended to be exclusive or exhaustive and the Department will look not only at the different kinds of efforts that the Contractor has made but also the quality, quantity, and intensity of these efforts. These provisions are under the general heading of Preparation of Proposals related to Articles 2 through 5. Subarticle 2-5.3.2 indicates that the bidder shall establish its participation information related to DBE subcontractor with the bid proposal or if the goals are not met, demonstrate that good faith efforts were made to meet the goals. The contract is awarded upon condition that the DBE participation goals are met, or upon establishing that good faith efforts were made to meet the goals and that the goals were not attainable. The form known as the DBE Utilization Form No. 1 was provided in this instance. It contemplates information as to success in meeting the DBE goals. A copy of that form may be found as part of the joint exhibit one. It contains no specific place to explain the good faith efforts that were made by the Petitioner to achieve those goals, in view of the Petitioner's lack of success in meeting the goals and Hobbs didn't submit good bid information with its bid. The bid was also submitted under the ausnices of Rule 14-78.03, Florida Administrative Code (May 1984). The first effort which Hobbs made at describing his alleged good faith efforts to employ the assistance of DBEs came on August 29, 1984, in correspondence of its project manager. This correspondence is found as State of Florida, Department of Transportation's exhibit number three and is correspondence directed to another official within Hobbs Construction. This statement of efforts to obtain minority or DBE participation in the project was along the lines of testimony given in the course of the hearing. No information, related to compliance, was given to the Department of Transportation prior to its notice of intent to reject the bid of July 24, 1984. Having no obligation to request that information from Hobbs, the Department of Transportation did not attempt to stir Hobbs into action on the issue of indication of good faith, prior to its notice of intent to reject Hobbs bid. Hobbs' explanation was eventually advanced ate the final hearing. Factually, even if one were to assume that the Petitioner could submit its prebid letting efforts at good faith compliance with the DBE goals, at a time beyond the filing of its bid proposal, the efforts do not comport with the concept of good faith as described in Subarticle 2-5.3.3 of the bid proposal and Section 14-78.03, (2)(b) 4.b., Florida Administrative Code related to an assessment of the efforts at good faith compliance. In this sense, Hobbs failed to afford sufficient time for DBE subcontractors to provide responses to the opportunity to offer quotations for the subcontracted work. The Subarticle and Rule contemplate seven days notice prior to the bid letting. The contracts made by the Petitioner were less than seven days prior to the letting of June 27, 1984. This left the one subcontractor who expressed some interest in the project, Powell, inadequate time to offer its price quote. Petitioner tries to explain its position on the question of the timeliness of its attempt by stating that it only became qualified five days before the bid letting and was only informed of that qualification one day before th opening. Given the fact that the Petitioner made application for such qualification on June 14, 1984, only thirteen days before the bid letting, its tardiness did not leave adequate time to afford potential DBE subcontractors the opportunity to respond to the work opportunity envisioned in this project. Finally, given the close proximity in time between the efforts of the Petitioner to seek DBE participation and the bid letting date and the problem related to the Petitioner's late expression of an interest in qualification for this class of job, Petitioner cannot be said to have offered much in the way of quality and intensity in the efforts to enlist DBE subcontractors for this project, as envisioned by the Subarticle and Rule provisions describing good faith efforts at compliance.
Findings Of Fact At some point in late 1984 or early 1985, Respondent, DOT, solicited bids for its Project Number 77030-3510 to be accomplished in Seminole County, Florida. Three bids were submitted. The bid by Petitioner, Macasphalt, was in the amount of $186,367.05. The two other bidders were Martin Paving Company, whose bid was for $196,391.99 and Orlando Paving whose bid was in the amount of $213,054.56. Petitioner's bid was the lowest by approximately $10,000.00. This particular project required the contractors to meet certain goals in the area of Disadvantaged Business Enterprises (DBE) and Women-Owned Business Enterprises (WBE). The goals for this project were 7% for DBE and 3.05% for WBE. In its bid, Macasphalt showed that it would award 20.14% of the contract to DBE's but only 2.01% of the contract to WBE's. Martin Paving Company, on the other hand, whose bid was approximately $10,000.00 higher, indicated that it would award 19.19% of the contract to DBE's and 3.04% of the contract to WBE's. Orlando Paving, which was the highest bidder, showed 2.4% WBE. As a result of the fact that Petitioner failed to achieve 3% WBE, whereas the second lowest bidder exceeded the 3% WBE goal, Respondent declared Petitioner's bid nonresponsive for failure to meet the WBE goal and recommended award of the contract to the second lowest bidder, Martin Paving, even though Martin's bid was approximately $10,000.00 higher. The goals set by DOT must be met at the time of letting of the contract. If a contractor cannot meet these goals, he must submit satisfactory evidence of his good faith efforts to meet them in order to be considered responsive. In regard to the goals, DOT issues a monthly list of certified DBE/WBE contractors listed by the type of work they are qualified to do and the geographical area in which they operate. According to Mr. LaLonde, Macasphalt routinely sent out letters to a majority of the subcontractors they feel could do the work generally and a follow-up letter is sent monthly to those subcontractors who do the type of work needed in a particular contract. These letters are sent monthly because Macasphalt bids frequently on DOT contracts and bid lettings are done on a monthly basis. This procedure gives, they feel, DBE's and WBE's information on jobs on which the Petitioner is bidding and keeps them informed. In the instant case, to solicit WBE's, on January 9, 1985 Petitioner sent out letters by certified mail to 47 DBE/WBE's requesting bids on several projects including the one in question here and naming areas in which it anticipated issuing subcontracts. Items to be subcontracted on the instant project included. barricades and signs guard rails landscaping painting and striping trucking, and concrete. No solicitation was made of DBE/WBE's for quotes on asphalt work because that is Petitioner's prime business and it is, in the opinion of its officers, not feasible to subcontract work they do themselves. When it became obvious that Petitioner could not achieve the 3.05% WBE goal, Petitioner, pursuant to the terms of the contract documents, submitted a summary of its good faith efforts to achieve the WBE goals with the contract bid. The Petitioner's summary of good faith effort includes a "remarks" sheet on which the following comments exclusively are made: "We have exceeded DBE goal with a total of 20.14%. However, have only attained 2.01% FBE goal. All subcontract items except guardrail were reflected in DBE or FBE quotes received. No DBE or FBE quote was received for guardrail item." In addition, Petitioner submitted a form letter entitled, "Good Faith Efforts" apparently used in numerous contracts, which requires only the insertion of two numbers and two dates and copies of two different letters in blank sent to subcontractors on apparently a routine basis. In addition to the above, Petitioner submitted two copies of DOT's DBE/WBE Directory, one dated September, 1984 and the other dated January, 1985 in which various subcontractors are identified with check marks, the explanation for which is contained in the form letter referenced above. No explanation was made as to why some WBE's were not solicited. Upon receipt of Petitioner's bid with the good faith explanation included, it was submitted to Respondent's Good Faith Efforts Review Committee. This committee deals only with an analysis of the good faith efforts made by bidders. It has been in operation since its creation in August, 1984 and applies the standards established in Rule 14-78, F.A.C. Here, the committee evaluated Petitioner's good faith effort as outlined in the material submitted with the bid and, based on Petitioner's submission, concluded that Petitioner was non-responsive because its good faith efforts, as documented, were insufficient. The committee based its conclusion on the following considerations: Petitioner did not meet the seven day requirement for notice by certified mail. The sample letter indicated "certified mail" but no copies of receipt showing it was sent by certified mail or to whom it was sent by certified mail were included. All potential subcontractors (WBE's) were not contacted. The ability of the contractor to do the work himself "asphalt) will not justify failing to achieve the goal. Whether or not other bidders met the goal. The remarks sheet was inaccurate and inadequate. The explanation about failing to solicit from those subcontractors who did not do business in Seminole County is inconsistent. Some were solicited and some were not. One contractor (Fran) who operates in three categories and who works statewide, was not solicited by the Petitioner in any category. The criteria as set forth in Rule 14-78 are not exclusive or necessarily determinative. There is no specific definition of good faith efforts. The committee is given the latitude to make a judgment measure of the bidder's efforts opposed to the criteria set forth in the rule. Mr. Pitchford, Chairman of the committee, indicated that after the committee had been in operation for a while, the approach taken toward looking at the criteria set forth in the rule was more strictly and severely applied. No notice of this change in approach was set to any bidder, however Petitioner contends that this was misleading and that it submitted them on a previous successful demonstration of good faith efforts. In October, 1984 it submitted a bid on a contract which did not meet the DBE goal. Nonetheless, the evidence of good faith which it submitted at that time was not questioned and Petitioner was awarded the contract. This good faith information was the same kind of information as submitted here which was considered inadequate. No documentation to support any of this was forthcoming, however. Since each case must be taken and considered on its own merits, even if true, this is not necessarily inconsistent. Petitioner readily admits that it did not submit requests for bids to al; DBE/WBE subcontractors in the directory. However, it does claim that for the most part, it submitted solicitations to every WBE listed in the directory that worked in the specialty needed and in the geographical area of the project. Petitioner defends its exclusion of potential subcontractors on the basis that, for example, they had no experience with those subcontractors and were not familiar with them. In most cases, Petitioner left out companies that were not known to it. Mr. LaLonde could not be sure whether Petitioner solicited any potential subcontractor not solicited by Petitioner previously. He is certain, however, that Petitioner did solicit all subcontractors on the list who had been solicited previously. In any event, it is important to the Petitioner to know the subcontractors and how they perform because Petitioner, as the prime contractor, is responsible for the work whether it or its subcontractor accomplishes it. It is for this reason, the lack of familiarity with a subcontractor and its performance, that it did not solicit some WBE's which operate statewide. Petitioner has used many WBE's before and has never failed, it claims, to meet WBE goals prior to this occasion. It has previously failed to meet DBE goals, however, but still was awarded the contract if it was the low bidder. It is apparent, then, that if the above is true, Petitioner's demonstrated good faith efforts were considered satisfactory on those occasions. Based on that experience, Petitioner felt that the procedures used here which it claims had previously been demonstrated to be satisfactory, were again sufficient. It is significant to note that while the fact of the bid submissions reflects a difference of approximately $10,000.00 between Petitioner's bid and that submitted by the next lowest bidder, a computer analysis run on this solicitation reflects a different figure. On the computer analysis, Martin Paving's bid is listed at slightly over $203,000.00 as opposed to the bid face of slightly over $196,000.00. If the $203,000.00 figure is used, the 3.05% goal would not be met. This discrepancy was explained by Mr. Haverty who indicated that the initial figure submitted by the contractor on the bid form is used to assess whether the DBE/WBE goals are met. The issue of good faith effort is raised at a later date. Where, as here, it is determined that the original price is in error and the actual price means that the bidder has failed to meet the goal, if the error is less than 10%, the bid may still be considered responsive.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Petitioner's bid on State Project Number 77030-3510, in Seminole County, Florida, be rejected as non-responsive for failure to meet the WBE goal. RECOMMENDED in Tallahassee, Florida this 20th day of June, 1985. ARNOLD H. POLLOCK 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 Administrative Hearings this 20th day of June, 1985. COPIES FURNISHED: William B. Miller, Esquire Tower Place, Suite 600 3340 Peachtree Road, N.E. Atlanta, GA 30326 Larry D. Scott Staff Attorney Department of Transportation 605 Suwannee Street Tallahassee, FL 32301 Paul A. Pappas Secretary Department of Transportation 562 Haydon Burns Building Tallahassee, FL 32301
Findings Of Fact Respondent, Florida Department of Transportation (DOT), is required by state and federal law to ensure that 10 percent of state and federal funds available for construction, design and consulting service-contracts be provided as an opportunity to small business concerns owned and controlled by socially and economically disadvantaged individuals (DBE). DBE contract goals are established by DOT for each construction contract. Every bidder must submit a form to 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 1984, DOT's practice allowed contractors ten days after the bid letting to correct their DBE forms or to submit their good faith effort documentation. However, effective May 23, 1984, DOT adopted Rule 14- 78.03(2)(b), F.A.C., which provides in pertinent part: 4. For all contracts for which DBE . . . contract goals have been established, each bidder shall meet or exceed or demonstrate that it could not meet, despite its good faith efforts, the contract goals set by the Department. The DBE . . . participation information shall be submitted with the contractor's bid proposal. Award of the contract shall be conditioned upon submission of the DBE . . . participation information with the bid proposal and upon satisfaction of the contract goals or, if the goals are not met, upon demonstrating that good faith efforts were made to meet the goals. Failure to satisfy these requirements shall result in a contractor's bid being deemed nonresponsive and the bid being rejected. (Emphasis supplied.) In August 1984, subsequent to the adoption of Rule 14.78.03(2)(b)4., F.A.C., DOT sent a "Notice to All Contractors" which advised . . . 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. Petitioner, Wiley N. Jackson Company, acknowledges receipt of the "Notice to All Contractors." By notice dated August 30, 1984, contractors were advised that sealed bids would be received until 10:30 a.m., September 26, 1984, on various road projects. The bid documents advised that the DBE goal for Job Number 89095-3411 was 10 percent. The specifications for Job Number 89095-3411 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. For all contracts for which DBE and/or WBE contract goals have been established, each contractor shall meet or exceed or demonstrate that it could not meet, despite its good faith efforts, the contract goals set by the Department. The DBE and WBE participation information shall be submitted with the Contractor's bid proposal. Award of the Contract shall be conditioned upon submission of the DBE and WBE participation information with the bid proposal and upon satisfaction of the contract goals, or, if the goals are not met, upon demonstrating that good faith efforts were made to meet the goals. The Contractor's bid submission shall include the following information (Submitted on Form No. 141-12 - DBE/WBE Utilization Form No. 1): The names and addresses of certified DBE and WBE firms that will participate in the contract. Only DBEs and WBEs certified by the Department at the time the bid is submitted may be counted toward DBE and WBE goals. A description of the work each named DBE and WBE firm will perform. The dollar amount of participation by each named DBE and WBE firm. If the DBE or WBE goal is not met, sufficient information to demonstrate that the Contractor made good faith efforts to meet the goals. (Emphasis supplied.) The specifications list, as grounds for disqualification of bidders, failure to satisfy the requirements of Section 2-5.3. Further, Section 2-5.3.3 of the specifications advised bidders that: In evaluating a contractor's good faith efforts, the Department will consider: Whether the Contractor, at least seven days prior to the letting, provided written notice by certified mail, return receipt requested, or hand delivery, with receipt, to all certified DBEs and WBEs which perform the type of work which the Contractor intends to subcontract, advising the DBEs and WBEs (a) of the specific work the Contractor intends to subcontract; (b) that their interest in the contract is being solicited; and (c) how to obtain information about and review and inspect the contract plans and specifications. Whether the Contractor selected economically feasible portions of the work to be performed by DBEs and 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 explanation of why the DBE or WBE will not be used during the course of the contract. Receipt of a lower quotation from a non-DBE or non-WBE will not in itself excuse a contractor's failure to meet contract goals; provided however, a contractor's good faith efforts obligation does not require a contractor to accept a quotation from a DBE or WBE which exceeds the lowest quotation received from any subcontractor by more than one percent. Whether the Contractor assisted interested DBEs and WBEs in obtaining any required bonding, lines of credit, or insurance. Whether the Contractor elected to subcontract types of work that match the capabilities of solicited DBEs or WBEs. Whether the Contractor's efforts were merely pro forma and given all relevant circumstances, could not reasonably be expected to produce sufficient DBE and WBE participation to meet the goals. Whether the Contractor has on other contracts within the past six months utilized DBEs and WBEs. The above list is not intended to be exclusive or exhaustive and the Department will look not only at the different kinds of efforts that the Contractor has made but also the quality, quantity and intensity of these efforts. Sections 2-5.3.2 and 2-5.3.3 are drawn directly and literally from Rule 14-78.03(2)(b). Consequently, all bidders were apprised by rule and bid specifications that if the DBE contract goal could not be met, sufficient information had to be submitted with their bid to demonstrate their good faith efforts to meet the goal, and the criteria that would be utilized to evaluate their efforts. On September 26, 1984, Petitioner submitted the low bid in the amount of $7,688,271.91 for Job Number 89095-3411. Attached to the bid was Form 141-12 - DBE/WBE Utilization Form No. 1, indicating that Petitioner's proposed utilization of DBEs was 0.2 percent of the total contract amount; $15,385 on a total bid of $7,688,271.91. Accompanying Petitioner's bid was a handwritten letter which stated: Gentlemen: To demonstrate good faith effort prior to the bid date for this project, we submitted seventy-three registered letters to prospective D.B.E. Subcontractors. On the major items we propose to sublet, comparative D.B.E. and non-D.B.E. quotations were received as follows: Box Culvert - J. E. Hill (D.B.E.) - 505,762.00 Shelton & Son - 369,092.00 Difference - $136,670.00 Fencing - Mikell (D.B.E.) - 55,727.00 Cyclone - 46,833.00 Difference - $ 8,894.00 Grassing - Mikell (D.B.E.) - 91,919.00 Agricultural Land - 63,198.00 Difference - $28.721.00 In view of the above, we are unable to meet the D.B.E. Goal and, at the same time, submit a realistic and competitive bid. Copies of pertinent quotations are attached and copies of D.B.E. solicitations (registered letters) and responses are available for your review. Quotations reflecting one unaccepted DBE proposal, and one accepted non-DBE proposal, in each of three areas--concrete, fencing and grassing--were attached to the letter. In each instance the DBE proposal exceeded the non-DBE proposal by more than one percent. No other documentation was submitted with Petitioner's bid to demonstrate its good faith efforts to meet the DBE contract goal. Respondent, Dickerson Florida, Inc. (Dickerson), was the second low bidder with a bid of $7,926,819.49. Dickerson's bid reflected a DBE participation of 10.8 percent. Upon the closure of bidding, Petitioner's bid was submitted to the Good Faith Effort Committee at DOT to evaluate the information contained in the bid to determine whether Petitioner's documentation evidenced a good faith effort to meet the DBE goal. That committee found Petitioner's bid documentation failed to demonstrate a good faith effort to meet the DBE goal, and recommended that Petitioner's bid be declared non-responsive and be rejected. DOT declared Petitioner's bid non-responsive and rejected its bid. DOT proposed awarding the contract to Dickerson. Petitioner's bid documentation failed to demonstrate a good faith effort to meet the DBE contract goals. The documentation failed to demonstrate that: (1) Petitioner, at least seven days prior to letting, had provided written notice to all certified DBEs, or, of what the DBEs had been informed, (2) Petitioner had selected economically feasible portions of the work to be performed by DBEs, (3) Petitioner had provided interested DBEs with assistance in reviewing the contract plans and specifications, and (4) Petitioner had selected for subcontract types of work that matched the capabilities of the solicited DBEs. Further, Petitioner's documentation did not include all quotations received from DBEs. Job Number 89095-3411 included several categories of work: box culverts, signs, landscaping, guardrail, fencing, traffic striping, trucking, paving, grading and miscellaneous concrete. The bid documentation submitted by Petitioner did not indicate the items it attempted to subcontract, nor what efforts, if any, it had expended to solicit DBE participation beyond "a letter" it had mailed, at an indeterminate date, to some 73 unidentified "prospective DBE subcontractors." Facially, Petitioner's documentation evidenced a pro forma effort. Subsequent to the bid closing, Petitioner forwarded to DOT copies of the 73 letters it had mailed to "prospective DBE subcontractors," together with the certified mail return receipts. Petitioner was in possession of these documents prior to the close of bidding, and could have submitted them with its bid. DOT's Good Faith Effort Committee declined to consider Petitioner's postbid submission. The committee interpreted Rule 14-78.03, F.A.C., to require the DBE participation information be submitted with the bid proposal, and to preclude consideration of postbid submissions. DOT has at all times acted consistently with this interpretation.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered by the Department of Transportation rejecting the bid submitted by Petitioner, Wiley N. Jackson Company, on State Project No. 89095-3411, Martin County, Florida, and awarding the contract to Respondent, Dickerson Florida, Inc. DONE and ENTERED this 31st day of May, 1985, at Tallahassee, Florida. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 FILED with the Clerk of the Division of Administrative Hearings this 31st day of May, 1985. COPIES FURNISHED: David T. Knight, Esquire Shackleford, Farrior, Stallings and Evans, P.A. Post Office Box 3324 Tampa, Florida 33601 Larry D. Scott; Esquire Department of Transportation Haydon Burns Building, M.S. 58 Tallahassee, Florida 32301-8064 Robert M. Ervin, Esquire Thomas M. Ervin, Jr., Esquire Ervin, Varn, Jacobs, Odom & Kitchen Post Office Drawer 1170 Tallahassee, Florida 32302 Paul A. Pappas, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301
Findings Of Fact Department of Transportation (DOT) Project #02000-3608 is a federal aid highway project requiring the replacement of a bridge on Kings Bay Drive over a canal near the Crystal River in Citrus County, Florida. The bridge is currently closed due to hurricane damage. The bid specifications were published, and a bid submittal deadline of March 28, 1990, was established. The bid specifications included a disadvantaged business enterprise (DBE) goal of 10%, and hiring goals of 6.9% female and 17.1% minority. The bid specifications also included the following special provisions related to DBE: PREPARATION OF PROPOSALS * * * 2-5.3.2 Submittals for Contracts with Goals: For all contracts for which DBE contract goals have been established, each contractor shall meet or exceed or demonstrate that it could not meet, despite its good faith efforts, the contract goals set by the Department. The DBE participation information shall be submitted with the Contractor's bid proposal. Award of the Contract shall be conditioned upon submission of the DBE participation information with the bid proposal and upon satisfaction of the contract goals or, if the goals are not met, upon demonstrating that good faith efforts were made to meet the goals. The Contractor's bid submission shall include the following information (Submitted on Forms Nos. 275-020-002-DBE Utilization Affirmative Action Certification, 275-020-003-DBE Utilization Summary and 275-020-004-DBE Utilization Form): The names and addresses of certified DBE firms that will participate in the contract. Only DBEs certified by the Department at the time the bid is submitted may be counted toward DBE goals. A description of the work each named DBE firm will perform. The dollar amount of participation by each named DBE firm. If the DBE goal is not met, sufficient information to demonstrate that the contractor made good faith efforts to meet the goals. * * * DISQUALIFICATION OF BIDDERS ARTICLE 2-11 (Page 11) is expanded as follows: (h) Failure to satisfy the requirements of 2-5.3. * * * (Petitioner's exhibit #2, emphasis added) DBE goals for projects to be bid are established at DOT by a committee which includes a representative from the agency's Bureau of Minority Programs. From a list of individual bid items, the committee determines which items are normally subcontracted. Those items are totalled to achieve a percentage of the job. The Bureau of Minority Programs then reviews the list to determine the number of DBEs, from the agency directory, which would be available to perform the subcontracted work in the relevant geographical area. The Bureau of Minority Programs then makes its recommendation to the goals-setting committee. For example, if 40% of the job would normally be subcontracted and DBEs were available to perform 50% of that work, the goal could be set at 20%. In practice, the goals are not set so high, and the most common goal is 10%, as that is the overall goal of the DOT. Goals vary, depending on the type of work, the location and the availability of DBEs. Hiring goals are also established for each project, but in contrast to the DBE goals, they are not considered in the award of a bid. Four firms responded to the bid advertisement for Project Number 02000- 3608. The Cone Corporation was the low bidder at $588,793.45. Cone Constructors, Inc. bid $629,736.85. Piling and Structures, Inc. bid $700,436.53; and Leware Construction Company bid $733,333.33. The Cone Corporation bid included DBE utilization forms indicating that $56,000.00 would be subcontracted to H.S. Thompson Construction Company for concrete and rebar work. This amounts to approximately 9.5% of its bid. The Cone Corporation did not submit any statement with its bid package as to how good faith efforts were made to comply with the DBE goal. A good faith effort committee of the department met to review the bids, and determined that it could not evaluate the Cone Corporation's good faith efforts because no information was provided. Cone Constructor, Inc., the next lowest bidder, provided a $70,000.00 subcontract with a DBE firm, D.A.B. Constructors, Inc., for various work items related to the project. This amounts to approximately 11% of its bid, and meets the specified 10% goal. Piling and Structures, Inc., provided for six DBE subcontractors for a total of $56,000.00, or approximately 8% of its bid; and Leware Construction Company, the highest bidder, provided for four DBE subcontractors, for a total of $76,887.45, or approximately 10.5% of its bid. Thus, two bidders met the specified DBE goal, and two did not. The good faith efforts committee recommended that Cone Corporation's bid be declared nonresponsive because the DBE goal was not achieved and documentation of good faith effort was not submitted. The committee noted that DBE utilization forms submitted by other bidders indicated that there were other DBE subcontractors available for work on the project. Bob Graham is vice-president of the Cone Corporation and has worked for the firm for ten years. He is responsible for the day to day management of the firm, and he prepared the project bid. Bob Graham concedes that the DBE subcontract in his bid does not meet the 10% goal. He solicited and received other DBE subcontract quotations, but rejected them as being higher than non-DBE quotations. Only one DBE subcontractor responded lowest in an area of work and Graham submitted that firm, H.S. Thompson, as part of his bid. Bob Graham also admits that he did not submit any good faith documentation with his bid to demonstrate that an effort was made to meet the DBE goal. Bids are commonly compiled at the last minute, with the bidders assembling various quotations and putting together final numbers to meet the bid deadline. Graham simply did not have time to add the good faith effort documentation. He made a considered business decision to reject all but one DBE subcontractor, in favor of being able to submit a lower bid. He knew at the time that his bid was submitted that the DBE goal was not met. His bid was approximately $41,000.00 lower than the next lowest bid. For an additional $2,800.00 he could have met the 10% goal. This, of course, was apparent only after the bids were opened.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED That a Final Order be entered, dismissing the protest of Petitioner, the Cone Corporation. DONE AND RECOMMENDED this 9th day of July, 1990, in Tallahassee, Leon County, Florida. Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of July, 1990. COPIES FURNISHED: W. Crit Smith, Esquire SMITH AND THOMPSON, P.A. 1530 Metropolitan Blvd. Tallahassee, FL 32308 John H. Beck, Esquire 1020 East Park Avenue Tallahassee, FL 32301 Paul J. Martin, Esquire and Susan P. Stephens, Esquire Department of Transportation Haydon Burns Building, M.S. #58 605 Suwannee Street Tallahassee, FL 32399-0450 Ben G. Watts, Secretary Attn: Eleanor F. Turner, M.S. #58 Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0450 Thornton J. Williams, General Counsel Department of Transportation 562 Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0450 =================================================================
Findings Of Fact Petitioner obtained bid specifications and submitted the lowest bid on Department of Transportation project No. 12075-3408 to construct rest station facilities on the I-75 in Lee County. The specifications established a goal of 15 percent of the subcontracts be let to Disadvantaged Business Enterprises (Exhibit 1). If the successful bidder failed to meet this goal, he must show a good faith effort to meet the goal was made else his bid would be deemed non-responsive and rejected. Rules 14-78.01 through 14-78.09, Florida Administrative Code, which became effective in June, 1984, were the controlling regulations at the time the bids for the project were solicited. These rules eliminate the former classification of Minority Business Enterprises comprised of minorities and women and replaces it with a Disadvantaged Business Enterprise (DBE) and a Women's Business Enterprise (WBE) classifications. In the instant contract a goal was established only for DBE. Actions to be taken by the bidder to meet these goals were contained in the bid package, as were the criteria by which the bidder's good faith efforts to meets these goals would be evaluated by DOT. The bid specifications required the contractor, if he failed to meet the DBE goal established, to submit all documentation to support his claim that a good faith effort had been made. With his bid Petitioner submitted only a list of 28 subcontractors from whom it had solicited bids, of which 6 were WBEs. That list showed the date request for bid was sent by certified mail by Petitioner, the date return receipt was received, whether a bid was received, and date back-up phone call was made. That document showed three listed companies submitted bids. DBE/WBE utilization form No. 1 (Exhibit 1) submitted by Petitioner showed no bids were received. Petitioner explained this discrepancy at the hearing, that he had rejected the three bids received because they were more than one percent higher than the bid submitted by another subcontractor. Documentation of this fact did not accompany Petitioner's bid. Upon receipt of Petitioner's bid showing no DBE subcontractor, the bid was submitted to the Good Faith Effort Committee at DOT to evaluate the information contained in the bid to determine if Petitioner had submitted documentation to support his good faith efforts to meet the DBE goal. That committee found Petitioner had not provided adequate documentation of its efforts and recommended the bid be declared non-responsive (Exhibit 8). Prior to Rules 14-78.01 through 14-78.09, Florida Administrative Code, becoming effective in June 1984, the rules allowed the contractor an additional ten days after bid opening to submit evidence that good faith efforts had been made to meet DBE goals. After June 1984 all documentation of good faith efforts are required to be submitted with the bid where DBE goals are not met. In the event the DBE goal is not met by the contractor in his bid submission, the bid specifications (Exhibit 1) require the contractor to submit sufficient information to demonstrate he made good faith efforts to meet the goal. Those bid specifications further list nine items the Department will consider in evaluating the contractor's good faith efforts. These include submitting written notice by certified mail to all certified DBEs which perform the type work which the contractor intends to subcontract; whether the contractor selected economically feasible portions of the work to be done by DBEs; whether the contractor provided assistance to DBEs in reviewing plans and specifications; whether DBE goals were met by other bidders; whether contractor submits all quotations received from DBEs and, for those not accepted, an explanation of why not; whether contractor assisted DBEs in obtaining required bonding, lines of credit or insurance; whether contractor elected to subcontract types of work meeting capabilities of DBEs; whether contractor's efforts were merely proforma; and whether contractor has, on other contracts within the past six months, utilized DBEs. A list of certified DBEs is contained in Exhibit 7, which was available to Petitioner. Therein are listed many DBEs other than those on the list submitted by Petitioner with his bid. At the hearing return receipts for certified mail soliciting bids from DBEs by Petitioner were admitted into evidence, over objection, as Exhibit 3. Since the rules require all documentation of good faith efforts be submitted with the bid, that exhibit is not relevant. However, that exhibit clearly shows all certified DBEs were not solicited by Petitioner. Of those nine items Petitioner was notified would be considered by the Department in evaluating his good faith efforts to obtain the DBE goal, the evidence submitted with Petitioner's bid showed compliance with none. This gas the first bid submitted by Petitioner to Respondent. Other bidders met the DBE goals and the bid was awarded to the second low bidder.
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
