DAB CONSTRUCTORS v. Dept. of Transp.

656 So. 2d 940, 1995 Fla. App. LEXIS 5299, 1995 WL 296206
CourtDistrict Court of Appeal of Florida
DecidedMay 17, 1995
Docket95-118
StatusPublished
Cited by3 cases

This text of 656 So. 2d 940 (DAB CONSTRUCTORS v. 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
DAB CONSTRUCTORS v. Dept. of Transp., 656 So. 2d 940, 1995 Fla. App. LEXIS 5299, 1995 WL 296206 (Fla. Ct. App. 1995).

Opinion

656 So.2d 940 (1995)

D.A.B. CONSTRUCTORS, INC., Petitioner,
v.
STATE of Florida, DEPARTMENT OF TRANSPORTATION, Respondent.

No. 95-118.

District Court of Appeal of Florida, First District.

May 17, 1995.
Rehearing Denied July 14, 1995.

*941 Thomas J. Cassidy, III, Tallahassee, for appellant.

Thornton J. Williams, Gen. Counsel and Marianne A. Trussell, Asst. Gen. Counsel, Tallahassee, for appellee.

ZEHMER, Chief Judge.

Petitioner, D.A.B. Constructors, Inc. ("D.A.B."), petitions for a writ of mandamus directing respondent, State of Florida, Department of Transportation ("the department") to stop the award of a contract for road improvement work to White Construction Company, Inc. ("White") and to refer D.A.B.'s bid protest to the Division of Administrative Hearings for a formal hearing.

We hold that the disqualification of White as a road contractor on the basis of irresponsibility must be determined exclusively in an administrative proceeding conducted pursuant to section 337.16, Florida Statutes (Supp. 1994), and the department's rules promulgated thereunder. Therefore, D.A.B. has failed to establish its clear legal right to an administrative hearing to determine White's responsibility in a bid protest proceeding, and we deny its petition for a writ of mandamus.

I.

On December 5, 1994, the department posted its notice of intent to award White, a licensed road and bridge contractor prequalified with the department, a contract for road improvement work along Interstate 75 in Marion County. D.A.B., another licensed road and bridge contractor prequalified to bid on work for the department, was the second lowest bidder. On December 15, 1994, D.A.B. filed a bid protest pursuant to section 337.11, Florida Statutes (Supp. 1994), and section 120.53(5), Florida Statutes (1993), asserting that White should be declared a nonresponsible bidder and that D.A.B. should be awarded the contract.

Upon receipt of D.A.B.'s bid protest, the department advised D.A.B. that its bid protest was legally insufficient to state a basis for an administrative hearing, but that the department would issue an order to show cause to give D.A.B. another opportunity to state a sufficient basis. On January 13, 1995, the department issued an order to show cause why D.A.B.'s bid protest should not be dismissed for failure to allege a factual or legal dispute with the department's proposed action that would serve as a basis for an administrative proceeding under section 120.57, Florida Statutes (Supp. 1994). D.A.B. then filed its petition for a writ of mandamus with this court requesting this court to direct the department to stop the contract award process and to forward D.A.B.'s bid protest to the Division of Administrative Hearings.

On February 6, 1995, D.A.B. filed an amended bid protest and a response to the department's order to show cause, alleging that White was not the lowest responsible bidder because White had not shown the financial resources and ability, honesty, and integrity necessary to faithfully perform the contract as required by statute. It also alleged that the department had acted arbitrarily, capriciously, and unlawfully by granting White preferential disparate treatment on other projects and by failing to perform its statutory duties under Chapter 337. D.A.B. requested that it be declared the lowest responsible bidder for the project, that a settlement conference be held pursuant to section 120.53(5)(d), and that, in the event no resolution occurred as a result of the settlement conference, its bid protest be referred to the Division of Administrative Hearings for a formal proceeding pursuant to section 120.57(1).

The department thereafter entered a final order dismissing D.A.B.'s amended bid protest, concluding that, even if the allegations made by D.A.B. were to be proven at an administrative hearing, the department would nevertheless be foreclosed, as a matter of law, from granting D.A.B. the relief it sought. The department ruled that D.A.B.'s allegations concerning White's delinquency-based nonresponsibility must be dealt with solely in the context of an administrative proceeding conducted pursuant to section 337.16, Florida Statutes (Supp. 1994). It rejected D.A.B.'s assertion that a prequalified contractor could be declared a nonresponsible bidder under section 337.11(4), Florida Statutes (1993), without following the procedures set forth in section 337.16. It further *942 concluded that White's financial capacity was an issue determined by a certificate of qualification previously issued pursuant to section 337.14(1), Florida Statutes, and Chapter 14-22 of the Florida Administrative Code. As to D.A.B.'s remaining allegations, the department concluded that, because D.A.B.'s allegations concerned other projects, none of which were relevant to how the department had acted in the present project, D.A.B. lacked standing to litigate issues which solely concerned the department and other contractors.

II.

We find no merit to D.A.B.'s contention that the department had no discretion to dismiss its bid protest and was required to refer its protest to the Division of Administrative Hearings. We hold that the department has the discretion to determine the legal sufficiency of a bid protest before it is required to refer the bid protest to the Division of Administrative Hearings. See Fort Howard Co. v. Dep't of Management Services, 624 So.2d 783 (Fla. 1st DCA 1993) (affirming denial of bid protest based on a lack of standing because there was no assurance that any relief, consistent with section 120.53(5), could be afforded).

D.A.B. argues further that, because section 337.11(4) provides that the department may award contracts to the lowest responsible bidder,[1] responsibility may be determined outside the context of a section 337.16 proceeding. Relying on this court's opinions in Couch Constr. Co. v. Dep't of Transp., 361 So.2d 184 (Fla. 1st DCA 1978), and Baxter's Asphalt & Concrete, Inc. v. Dep't of Transp., 475 So.2d 1284 (Fla. 1st DCA 1985), D.A.B. asserts that it may challenge White's lack of responsibility under section 337.11(4) in a bid protest proceeding. In Couch, this court held that section 337.16 did not eliminate the traditional competitive bidding requirement that the contract be awarded to the lowest responsible bidder as set forth in section 337.11, and the issue of responsibility was raised in the bid protest proceeding. In Baxter's, this court again recognized that the responsibility of a bidder may be challenged under section 337.11 in a bid protest proceeding.

D.A.B., however, overlooks the language and evolution of the amendments to section 337.16 enacted after this court's opinions in Couch and Baxter's issued. In 1984 and 1985, the language of section 337.16(1) was expanded substantially to provide a detailed procedure by which the department must provide procedural due process to a road contractor whose certificate of qualification to bid on department projects is subject to potential denial, suspension or revocation.[2]*943 Prior to these 1984 and 1985 changes, section 337.16(1), Florida Statutes (1983), provided only that:

No contractor shall be qualified to bid when an investigation by the highway engineer discloses that such contractor is delinquent on a previously awarded contract, and in such case his certificate of qualification shall be suspended or revoked.

Couch

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656 So. 2d 940, 1995 Fla. App. LEXIS 5299, 1995 WL 296206, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dab-constructors-v-dept-of-transp-fladistctapp-1995.