Asphalt Pavers, Inc. v. STATE, DEPT. OF TRANSP.

602 So. 2d 558, 1992 Fla. App. LEXIS 4836, 1992 WL 85094
CourtDistrict Court of Appeal of Florida
DecidedApril 30, 1992
Docket91-1913
StatusPublished
Cited by4 cases

This text of 602 So. 2d 558 (Asphalt Pavers, Inc. v. STATE, DEPT. OF TRANSP.) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Asphalt Pavers, Inc. v. STATE, DEPT. OF TRANSP., 602 So. 2d 558, 1992 Fla. App. LEXIS 4836, 1992 WL 85094 (Fla. Ct. App. 1992).

Opinion

602 So.2d 558 (1992)

ASPHALT PAVERS, INC., Appellant,
v.
STATE of Florida, DEPARTMENT OF TRANSPORTATION, Appellee.

No. 91-1913.

District Court of Appeal of Florida, First District.

April 30, 1992.

W. Crit Smith of Smith & Thompson, P.A., Tallahassee, for appellant.

Thornton J. Williams, General Counsel, and Gregory G. Costas, Asst. General Counsel, Dept. of Transp., Tallahassee, for appellee.

ZEHMER, Judge.

Asphalt Pavers, Inc. (Asphalt), having submitted the lowest bid on Department of Transportation State Project No. 09010-3518, appeals a final order dismissing its protest to the disqualification of its bid and the intended award of the project to the next lowest bidder. We hold that the hearing officer's findings of fact rejected by the Department of Transportation (DOT) are supported by competent, substantial evidence, reverse the final order, and remand for further proceedings.

In January 1991, DOT conducted a bid letting in Tallahassee to solicit bids from contractors for the subject road project. The bid specifications required, among other things, that each bid meet a disadvantaged business enterprise (DBE) goal of *559 10%. Each bid packet included a certification form to be signed by the bidder and submitted with the bid packet, stating that the bidder certifies and understands that it must show how the DBE goal is met. The form also states that failure to submit the DBE utilization forms reflecting full compliance with the contract goal, or in cases where forms do not reflect full compliance with the DBE goal, failure to submit sufficient documentation to demonstrate good faith efforts to meet the goal, will be just cause to consider the bid nonresponsive and to reject the bid. Section 2-5.3.2 of the Special Provisions required that the bid submission include a properly completed and executed Utilization Affirmative Action Certification, a Utilization Summary, and a Utilization Form.

Asphalt submitted its bid proposal in the amount of $2,402,747.90. At 11:00 a.m. on January 23, 1991, all bids were opened and reviewed by DOT's staff in DOT's auditorium in Tallahassee, and it was announced that Asphalt was the lowest bidder. DOT employees then collected the bid packets and took them to the Contracts Administration office to await the arrival of staff personnel from the Minority Programs Office who would check the packets for DBE compliance. When the staff arrived at 1:30 p.m. and began to check the packets, they discovered that the utilization form for one of the DBE subcontractors (H.S. Thompson) listed on Asphalt's summary sheet was missing. After Asphalt's bid proposal was reviewed by the Minority Programs Office and DOT's Good Faith Efforts Review Committee, it was recommended that the bid be considered nonresponsive because:

the DBE goal was not achieved[1] and no good faith efforts were presented with the bid for evaluation as required by Rule 14-78.003(2)(b)3c. The company attempted to meet the goal by using four (4) DBE companies. The DBE names were listed on the Summary Sheet. However, the Utilization Form for one DBE (H.S. Thompson) documenting the type of work and the committment [sic] by the bidder to use the DBE, was not included in the bid proposal... .

DOT followed this recommendation and determined that Asphalt's bid was nonresponsive.

On March 4, 1991, DOT posted a notice of intent to award the bid to the next lowest bidder, Weekley Asphalt Paving, Inc. Asphalt filed a Notice of Protest and a Formal Protest to DOT's decision to award the bid to the next lowest bidder, asserting that its bid was responsive in every manner, including the submission of all the necessary DBE certifications. Alternatively, it contended that if it had failed to submit the necessary DBE documents, this was harmless error since the information was provided on other bid documents and DOT had previously failed to adhere to the strict requirements of rules and statutes governing the submission of bid documents.

The matter went to an evidentiary hearing pursuant to section 120.57(1), Florida Statutes (1989). Mr. Dumas testified that he prepared the bid documents, attached the missing form to the bid packet, sealed it in an envelope and delivered it to DOT. There was no other direct evidence concerning what happened to the missing document. The hearing officer's recommended order, entered on May 10, 1991, concluded that DOT should enter a final order granting Asphalt's protest and awarding the project to Asphalt. Among other things, the hearing officer made factual findings that all DOT routine procedures were followed on the day that the bids were opened; that it is virtually impossible to determine precisely what happened to the H.S. Thompson utilization form in Asphalt's bid packet; and that "[t]he H.S. Thompson form was lost, and it is more likely this occurred after the packet was opened by FDOT than before it was sealed in the envelope by Jennings Clay Dumas." The hearing officer stated in the "conclusions of law" that "[b]oth direct and circumstantial *560 evidence support a finding that the bid did include the documentation at the time that it was presented to DOT, but that it was somehow detached and lost after opening"; that even though the rule requirement for the utilization form is "uncontestedly not material," DOT is bound by the rule until it is amended or superceded by subsequent legislation; and that because Asphalt had met its burden of proof that the DBE participation goal was met and did include the documentation to that effect, it was entitled to the contract as the lowest bidder.

On May 28, 1991, DOT entered a final order dismissing Asphalt's protest. The final order rejected the hearing officer's finding of fact that it was more likely the loss of the missing form occurred after the bid proposal packet was opened by DOT, reciting that this was not based on substantial, competent evidence, and that the facts in the record "constitute[] prima facie evidence that the documentation was not lost by the Department." The final order further recites that:

4. The standard of review for the Respondent's determination that the sheet was not in Petitioner's package is whether that determination was fraudulent, arbitrary, illegal or dishonest. [Department of Transportation v.] Groves-Watkins, 530 So.2d 912 (Fla. 1988). The facts in the instant case do not support a finding of [sic] that the agency acted fraudulently, arbitrarily, illegally or dishonestly. The Hearing Officer's conclusion, based on what she determined to be the credible testimony of the Respondent's employees, was that it was virtually impossible to determine what happened to the missing sheet (Finding of Fact Number 14).
Petitioner failed to establish by competent substantial evidence that it had complied with Florida Administrative Code Rule 14-78.003(2)(b)3., in that Asphalt Pavers failed to include a description of the work to be performed by DBE contractor H.S. Thompson. Nothing in the record demonstrates that the Department's action on determining Asphalt Pavers' bid to be nonresponsive was in any way arbitrary, fraudulent, illegal or dishonest. Department of Transportation v. Groves-Watkins Constructors, supra. In fact, no such finding or conclusion was made by the Hearing Officer. Put simply, Petitioner failed to carry its burden of proof.

Asphalt contends that DOT erred in substituting its conclusion for that of the hearing officer on the disputed factual issue of whether the H.S.

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602 So. 2d 558, 1992 Fla. App. LEXIS 4836, 1992 WL 85094, Counsel Stack Legal Research, https://law.counselstack.com/opinion/asphalt-pavers-inc-v-state-dept-of-transp-fladistctapp-1992.