00-004248BID Diversified Management And Construction, Inc. vs. Department Of Transportation Status: Closed Recommended Order on Tuesday, December 5, 2000.

Summary: Petitioner failed to establish grounds for extension of ten-day filing period of Section 120.57(3), Florida Statutes.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DIVERSIFIED MANAGEMENT AND )

CONSTRUCTION, INC., )

)

Petitioner, )

)

vs. ) Case No. 00-4248BID

)

DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

________________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this

case on October 30, 2000, in Tampa, Florida, before Lawrence P.

Stevenson, a duly-designated Administrative Law Judge of the

Division of Administrative Hearings.

APPEARANCES

For Petitioner: John J. Agliano, Esquire

C. David Harper, Esquire

Annis, Mitchell, Cockey,

Edwards & Roehm, P.A.

Post Office Box 3433

Tampa, Florida 33601

For Respondent: Brian A. Crumbaker, Esquire

Department of Transportation

605 Suwannee Street

Haydon Burns Building, Mail Station 58

Tallahassee, Florid a 32399-0458

STATEMENT OF THE ISSUE

The issue presented for decision in this case is whether

Respondent, the Florida Department of Transportation (the

"Department"), improperly dismissed the formal written protest of

Petitioner, Diversified Management and Construction, Inc.

("Diversified"), on the ground that it was not filed within

10 days of the filing of Diversified's notice of intent to

protest.

PRELIMINARY STATEMENT

On August 2, 2000, the Department opened bid proposals

submitted in response to RFP-DOT-00/01-33005-R/W (the "RFP"), a

request for written proposals from contractors to conduct

asbestos surveys and perform related tasks in facilities owned by

the Department in District III. The Department posted its bid

tabulation on August 8, 2000, announcing its intent to award the

contract to Preferred Building Solutions, Inc. In response to

the proposal tabulation, Diversified timely filed a notice of

intent to protest and a protest bond with the Department’s agency

clerk via facsimile on August 11, 2000. Diversified filed its

formal written protest on August 25, 2000, four days after the

filing deadline established by Section 120.57(3), Florida

Statutes. On September 6, 2000, the Department dismissed the

formal written protest and provided Diversified 21 days to file

any evidence it wished the Department to consider regarding the

untimely filing of its formal protest. On September 27, 2000,

Diversified filed its response to the order of dismissal and an

amended petition. On October 16, 2000, the Department referred

the matter to the Division of Administrative Hearings for

assignment of an Administrative Law Judge to conduct a formal

administrative hearing on the issue of the propriety of the

dismissal of the formal written protest.

At the fina l hearing, Diversified presented the testimony of

John Jazesf, its president. Diversified's Exhibits numbered

1 through 7 were admitted into evidence. The Department

presented the testimony of James C. Myers, the Department's

agency clerk. The Department offered no exhibits.

A Transcript of the final hearing was filed with the

Division of Administrative Hearings on November 9, 2000. The

parties stipulated that the Proposed Recommended Orders would be

filed no later than five working days after the filing of the

Transcript. Both parties timely filed Proposed Recommended

Orders on November 17, 2000.

FINDINGS OF FACT

Based on the oral and documentary evidence adduced at the

final hearing, and the entire record in this proceeding, the

following findings of fact are made:

1. In response to the RFP, seven contractors submitted

proposals by the deadline of 5 p.m. on August 1, 2000.

2. On August 2, 2000, the bid opening was conducted by

Betty Wilson, the Department’s deputy district manager, and was

witnessed by Department employees Scott Walters and Jerry Obert.

3. At 2 p.m. on August 8, 2000, the Department posted the

proposal tabulation, indicating the Department’s intent to award

the contract to Preferred Building Solutions, Inc. The proposal

tabulation indicated that Diversified was ranked third out of the

seven proposers.

4. The proposal tabulation contained the following notice,

as required by Section 120.57(3), Florida Statutes:

Failure to file a protest within the time

prescribed in Section 120.57(3), Florida

Statutes, shall constitute a waiver of

proceedings under Chapter 120, Florida

Statutes.

5. On August 8, 2000, after the proposal tabulation was

posted, John Jazesf, the president of Diversified, contacted the

Department by telephone and requested copies of several of the

proposals via facsimile transmission. The Department declined to

fax the proposals to Mr. Jazesf because they were too voluminous,

but offered to make them available for review at the Department’s

Tallahassee office.

6. On the afternoon of August 8, Mr. Jazesf also contacted

John Agliano, an attorney. He told Mr. Agliano that he was

thinking about filing a protest, but would not know until he went

to Tallahassee and reviewed the proposals. Mr. Jazesf testified

that he did not discuss protest time lines or any other specifics

with Mr. Agliano.

7. On August 9, 2000, Mr. Jazesf traveled from Tampa to

Tallahassee and reviewed the proposals. He also discussed the

proposed contract award with several Department officials.

8. On August 10, 2000, Mr. Jazesf spoke by telephone from

Tampa with James C. Myers, the Department’s agency clerk.

Mr. Jazesf testified that their conversation lasted between 20

and 30 minutes. They discussed the requirements for filing the

notice of protest, whether a third ranked proposer had standing

to protest, and whether documents could be filed with the

Department via facsimile transmission.

9. Mr. Jazesf testified that he told Mr. Myers that

Diversified would file its formal written protest, either “two

weeks from Friday” or on August 25, 2000. On the date of the

conversation, “two weeks from Friday” was August 25, 2000.

Mr. Myers testified that he could not recall the details of this

conversation. Mr. Jazesf acknowledged that Mr. Myers did not

respond to his statement as to when the formal written protest

would be filed.

10. As the agency clerk, Mr. Myers is responsible for date

stamping all documents addressed to the Clerk of Agency

Proceedings. He is not authorized to provide legal advice to

potential protesters, or to make judgments as to whether

documents are timely filed.

11. On August 11, 2000, Diversified filed its notice of

protest and faxed a copy of its protest bond to the Department.

There is no dispute between the parties that the notice of

protest was timely filed or that a faxed copy of the bond was

acceptable.

12. The August 11, 2000, filing of the notice of protest

established a deadline of August 21, 2000, for the filing of the

formal written protest, pursuant to the ten-day filing

requirement of Section 120.57(3), Florida Statutes.

13. Between August 11 and August 21, 2000, neither the

Department nor Mr. Jazesf, or anyone else on behalf of

Diversified, contacted each other concerning the formal written

protest. Diversified failed to file its formal written protest

on Monday, August 21, 2000.

14. On his own, Mr. Jazesf attempted to calendar the

appropriate date for filing its formal written protest. He

reviewed several state statutes and municipal ordinances to

confirm in his mind that the "10 day" rule meant ten working

days, rather than ten calendar days. Mr. Jazesf specifically

reviewed Section 120.57, Florida Statutes; Rule 28-110.005,

Florida Administrative Code; Section 1.18 of the RFP; the Bid

Tabulation Sheet; federal regulations providing for a ten

working-day notification requirement for asbestos stripping; and,

Section 108.4.3, Southern Building Code (1997), expressly

providing a 30 calendar-day notice of appeal deadline.

Mr. Jazesf testified that his review led him to conclude that

August 25, 2000, ten working days after filing the notice of

protest, was the deadline for filing the formal written protest.

15. Mr. Jazesf testified that he also relied on the silence

of Mr. Myers in response to his statement that Diversified

intended to file its formal written protest on August 25, 2000.

16. On August 22, 2000, one day after the statutory

deadline to file its formal written protest, Mr. Jazesf faxed a

memo to Mr. Myers indicating that the formal written protest

would be filed by August 25, 2000. Again, Mr. Myers did not

respond.

17. Diversified did not retain legal counsel in connection

with the bid protest on or before August 21, 2000.

18. Diversified filed its f ormal written protest on

August 25, 2000, four days after the statutory deadline, and ten

working days after the filing of the notice of protest.

CONCLUSIONS OF LAW

19. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties hereto

pursuant to Section 120.57(1) and (3), Florida Statutes.

20. Section 120.57(3)(f), Florida Statutes, provides in

pertinent part:

In a competitive procurement protest, other

than a rejection of all bids, the

administrative law judge shall conduct a de

novo proceeding to determine whether the

agency's proposed action is contrary to the

agency's governing statutes, the agency's

rules or policies, or the bid specifications.

The standard of proof for such proceedings

shall be whether the proposed agency action

was clearly erroneous, contrary to

competition, arbitrary, or capricious. . . .

21. "A capricious action is one taken without thought or

reason or irrationally. An arbitrary decision is one not

supported by facts or logic." Agrico Chemical Co. v. Department

of Environmental Regulation , 365 So. 2d 759, 763 (Fla. 1st DCA

1978). The inquiry to be made in determining whether an agency

has acted in an arbitrary or capricious manner involves

consideration of "whether the agency: (1) has considered all

relevant factors; (2) has given actual, good faith consideration

to those factors; and (3) has used reason rather than whim to

progress from consideration of these factors to its final

decision." Adam Smith Enterprises v. Department of Environmental

Regulation , 553 So. 2d 1260, 1273 (Fla. 1st DCA 1989).

22. As the party protesting the proposed agency action,

Diversified has the burden of proof. State Contracting and

Engineering Corp. v. Department of Transportation , 709 So. 2d

607, 609 (Fla. 1st DCA 1998); Section 120.57(3)(f), Florida

Statutes ("Unless otherwise provided by statute, the burden of

proof shall rest with the party protesting the proposed agency

action."). Because there is no statute providing otherwise, the

findings of fact in this proceeding "shall be based upon a

preponderance of the evidence." Section 120.57(1)(h), Florida

Statutes.

23. This is a de novo proceeding, which the Court in State

Contracting described as follows: "The judge may receive

evidence, as with any formal hearing under section 120.57(1), but

the object of the proceeding is to evaluate the action taken by

the agency." 709 So. 2d at 609. The Court cites

Intercontinental Properties, Inc. v. State Department of Health

and Rehabilitative Services , 606 So. 2d 380, 386 (Fla. 3d DCA

1992) for the definition of a de novo hearing in bid protest

proceedings. A de novo proceeding

simply means that there was an evidentiary

hearing during which each party had a full

and fair opportunity to develop an

evidentiary record for administrative review

purposes. It does not mean, . . . that the

hearing officer [now administrative law

judge] sits as a substitute for the

Department and makes a determination whether

to award the bid de novo . Instead, the

hearing officer sits in a review capacity,

and must determine whether the bid review

criteria set forth in [Liberty County v.

Baxter’s Asphalt and Concrete, Inc. , 421 So.

2d 505 (Fla. 1982)] have been satisfied.

24. Section 120.57(3)(b), Florida Statutes, provides, in

relevant part:

Any person who is adversely affected by the

agency decision or intended decision shall

file with the agency a notice of protest in

writing within 72 hours after the posting of

the bid tabulation or after receipt of the

notice of the agency decision or intended

decision and shall file a formal written

protest within 10 days after filing the

notice of protest. . . . Failure to file a

notice of protest or failure to file a formal

written protest shall constitute a waiver of

proceedings under this chapter. The formal

written protest shall state with

particularity the facts and law upon which

the protest is based. Saturdays, Sundays,

and legal holidays shall be excluded in the

computation of the 72-hour time periods

provided by this paragraph.

25. Diversified contends that the ten-day deadline for

filing a formal written protest is impermissibly vague. It

argues that the statute can reasonably be interpreted to require

filing within ten calendar days or within ten working days, and

that it would be inequitable to penalize Diversified for choosing

a reasonable interpretation that happens to differ from that of

the Department.

26. In support of its argument, Diversified cites Bell

Atlantic Business Systems Services, Inc. v. Florida Department of

Labor and Employment Security , 677 So. 2d 989 (Fla. 1st DCA

1996). In Bell Atlantic , the court reversed the agency’s

dismissal of petitioner’s bid protest as untimely where it was

filed 27 minutes after the expiration of the 72-hour period as

measured from the time of posting. Diversified states that the

court accepted the petitioner’s argument that Section 120.53(5),

Florida Statutes (the statutory predecessor to the notice

provision set forth above) could be interpreted to compute the

72-hour period from the time of posting or from the time the

notice of decision was actually received, and that neither

interpretation was preferred. Diversified concludes that Bell

Atlantic stands for the proposition that "a legal fiction of

implied notice of posting cannot be used to deny access to

administrative remedies," and that this proposition should

operate here to reinstate its protest.

27. Diversified’s reliance on Bell Atlantic is misplaced.

The statute at issue in Bell Atlantic , like the current Section

120.57(3), Florida Statutes, provided alternative computations

for the 72-hour period. The period may be counted from posting,

or from the time notice is received. The choice of alternatives

is made by the agency, not the bidders; however, the agency must

make the point of entry clear to the bidders from the start. The

Bell Atlantic court was not concerned with statutory ambiguities,

but with ambiguities in the agency’s actions. The agency stated

a posting date in its RFP, changed that date twice by addendum,

then posted the bid tabulation on yet another date without

apparent notice to the bidders. The agency’s last communication

with bidders prior to posting indicated that it would fax a copy

of the bid tabulation to the bidders at the time of posting.

Bell Atlantic , 677 So. 2d at 990. The petitioner claimed that it

did not receive actual notice of the posting until nearly two

days after it occurred. Id. at 991. The court held that the

agency’s dismissal of the protest depended on disputed facts

concerning the petitioner’s receipt of notice, and that the

protest could not be dismissed on that basis without affording

the petitioner a hearing to challenge its basis. Id. at 992.

28. In the instant case, there are no disputed facts as to

when Diversified received notice, or as to the event triggering

the running of the clock toward the statutory deadline. Here,

the only issue in dispute is the legal interpretation of Section

120.57(3), Florida Statutes. Bell Atlantic is inapposite.

29. Dive rsified also relies on Judge Zehmer’s dissent in

Environmental Resource Associates of Florida, Inc. v. Department

of General Services , 624 So. 2d 330, 332 (Fla. 1st DCA 1993), for

the proposition that failure to timely file a petition creates

only a rebuttable presumption of waiver. The majority opinion,

however, ruled that extraordinary circumstances did not exist to

warrant the application of the equitable tolling doctrine. Judge

Barfield in the majority opinion succinctly stated, "There is

nothing extraordinary in the failure to timely file in this case.

Quite to the contrary, the problem in this case is the too

ordinary occurrence of a party’s attorney failing to meet a

filing deadline." Id. at 331.

30. The fact that Diversified declined to retai n counsel

until the time for filing its protest had passed does not create

"extraordinary circumstances" to warrant the application of

equitable principles to enlarge the time for filing.

31. Further militating against the application of equitable

enlargement is the fact that the Department did nothing to

mislead or lull Diversified into inaction. Diversified conceded

that Mr. Myers made no representations to Mr. Jazesf regarding

the statutory filing requirements. Diversified established only

that Mr. Myers did not respond to the statement made by

Mr. Jazesf regarding his intent to file the formal written

protest on August 25, 2000, or to the subsequent facsimile from

Diversified expressing the same intent. Diversified did not

establish that Mr. Myers had a duty to inform Mr. Jazesf of the

filing deadlines. Informal and imprecise oral communications, or

lack thereof, are insufficient to overcome the effect of prior

formal notice where the posted tabulation explicitly advised that

failure to comply with the express statutory time requirements

for protests would constitute a waiver of Chapter 120

proceedings. See Xerox Corporation v. Department of Professional

Regulation , 489 So. 2d 1230, 1231 (Fla. 1st DCA 1986).

32. Diversified also argues that wh en Section 120.57(3),

Florida Statutes, is construed in pari materia with closely

related statutes and rules, it must be concluded that

Diversified’s petition was timely filed. Diversified points to

the express exclusion of weekends and holidays from the 72-hour

period set forth in Section 120.57(3) itself, as well as Rule

1.090(a), Florida Rules of Civil Procedure and Rule 28-1.06.103,

Florida Administrative Code, both of which expressly exclude

weekends and holidays from the computation of time periods of

less than seven days.

33. Review of the cited statutes and rules indicates that

where the exclusion of weekends and holidays is intended, it is

expressly stated, leading to the contrary conclusion that there

is no such exclusion for the ten-day period at issue in this

case. Section 120.57(3) in particular dictates this conclusion.

It sets forth both the 72-hour notice of intent and the ten-day

formal written protest requirements, but excludes weekends and

holidays only from the former.

34. It is c oncluded that Section 120.57(3), Florida

Statutes, is not ambiguous. It requires that a formal written

protest be filed within ten days of the notice of intent to

protest, and does not exclude weekends and holidays from the

computation of the time period. Diversified failed to establish

facts sufficient to warrant the application of equitable

principles to enlarge the unambiguous time line for the filing of

its formal written protest.

RECOMMENDATION

Upon the foregoing findings of fact and conclusions of law,

it is recommended that the Department of Transportation enter a

final order dismissing the protest filed by Diversified

Management and Construction, Inc. for failure to file the formal

written protest within ten days of filing its notice of protest.

DONE AND ENTERED this 5th day of December, 2000, in

Tallahassee, Leon County, Florida.

___________________________________

LAWRENCE P. STEVENSON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

F ax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 5th day of December, 2000.

COPIES FURNISHED:

Brian A. Crumbaker, Esquire

Department of Transportation

605 Suwannee Street

Haydon Burns Building, Mail Station 58

Tallahassee, Florida 32399-0458

John J. Agliano, Esquire

C. David Harper, Esquire

Annis, Mitchell, Cockey,

Edwards & Roehm, P.A.

Post Office Box 3433

Tampa, Florida 33601

James C. Myers

Clerk of Agency Proceedings

Department of Transportation

605 Suwannee Street

Haydon Burns Building, Mail Station 58

Tallahassee, Florida 32399-0450

Pamela Leslie, General Counsel

Department of Transportation

605 Suwannee Street

Haydon Burns Building, Mail Station 58

Tallahassee, Florida 32399-0450

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 10

days from the date of this Recommended Order. Any exceptions to

this Recommended Order should be filed with the agency that will

issue the Final Order in this case.