86-003457 Garcia Allen-Turner vs. Department Of Transportation Status: Closed Recommended Order on Friday, April 3, 1987.

Summary: All bids rejected where agency can not spend money it does not have.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GARCIA-ALLEN/TURNER, )

a joint venture, )

)

Petitioner, )

)

vs. ) CASE NO. 86- 3457B1D

)

STATE OF FLORIDA, )

DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

________________________________)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly

designated Hearing Officer, James E. Bradwell, held a formal hearing in this

case on October 24, 31 and December 18, 1986 and on January 21, 1987. The

parties were afforded leave through February 15, 1987 to submit Proposed

Recommended Orders. 1/ The parties Proposed Recommended Orders were considered

by me in preparation of this Recommended Order. Proposed findings of fact which

are not incorporated herein are the subject of specific rulings in an Appendix

attached hereto.

APPEARANCES

For Petitioner: John A. Barley, Esquire

400 North Meridian

Post Office Box 10166

Tallahassee, Florida 32302

For Respondent: Brant Hargrove, Esquire

Florida Department of Transportation

605 Suwannee Street Mail Station 58

Tallahassee, Florida 32399-0450

ISSUE PRESENTED

The issue presented for decision herein is whether the Florida Department

of Transportation ( FDOT) must award the contract for project numbers 87270-3414,

87270-3519 and 87085-3502 to the joint venture of Garcia-Allen/Turner (Garcia).

INTRODUCTION AND BACKGROUND

These proceedings commenced pursuant to Petitioner's filing of a written

notice of protest respecting the decision/intended decision of FDOT to reject

Petitioner's bid for award of a contract to construct a public works project to

be let by FDOT and to re-solicit bids for award of that contract. Petitioner

timely filed its petition for administrative hearing based on FDOT's decision to

reject all bids and to re-solicit bids.

On August 29, 1986/2 and on December 18, Petitioner was afforded leave to

amend its petition for administrative hearing.

The parties stipulated to the introduction of Exhibits 1-21 which were

received in evidence during the course of the hearing. Additionally, the

parties entered into to a Stipulation of Facts which will be set forth

hereinafter in the Finding of facts section of this Recommended Order with minor

changes for ease of reading. (Paragraphs 1 through 21).

FINDINGS OF FACT

Based upon my observation of witnesses and their demeanor while testifying,

documentary evidence received, the parties' joint stipulation of facts and the

entire record compiled herein, I hereby make the following relevant factual

findings.

1. On May 28, pursuant to approval and authorization by the Federal

Highway Administration (FHWA) and pursuant to pertinent provisions of Florida

Statutes and Florida Administrative Code, FDOT received sealed bids, one of

which was from Petitioner, in response to FDOT's public advertisement soliciting

competitive bids for award of the contract for construction of a public works

project known as Allapattah H.O.V. Station, a parking structure to be situated

at the southeast corner of Northwest 12th Street and Northwest 36th Street in

Miami, Florida, designated as FDOT Job Nos. 87270-3414, 87270-3519 and 87085-

3502, and as Federal Aid Project Nos. I-95-I(364)IV, ACIR-95-1(366)4 and M-

6155(2).

2. Prior to solicitation of bids for the project, FDOT submitted plans,

specifications and a pre-bid estimate to FHWA for review and approval. FHWA

reviewed and approved the plans, specifications and pre-bid estimate for the

project, and by separate written communications dated March 17 and April 17,

FHWA authorized FDOT to proceed with solicitation of competitive bids for the

project. Pursuant to that authorization and approval from FHA, FDOT caused its

advertisement soliciting competitive bids for the Allapattah project to be

published in newspapers of general circulation throughout the southeast and

Atlantic coast states, and, in so doing, classified the Allapattah project as a

public works project set aside and restricted to competitive bidding solely

among qualified contractors certified as disadvantaged business enterprises.

Before Petitioner submitted its bid, FDOT determined that Petitioner is a

qualified contractor and certified it as a disadvantaged business enterprise,

thus rendering Petitioner eligible to bid for award of the contract to construct

the Allapattah project.

3. When FDOT opened the bids it received for award of the contract to

construct the Allapattah project on May 28, it was apparent to FDOT that

Petitioner's bid of $15,193,048.40 was the lowest responsive bid, but that

Petitioner's bid exceeded the pre-bid estimate of the cost to construct the

Allapattah project by twenty-one and three tenths percent (21.3 percent). At

the time FHWA approved the plans, specifications and pre-bid estimate for the

Allapattah project, it was understood and agreed between FHWA and FDOT that if a

contract to construct the project was awarded in the amount of the pre-bid

estimate, which was $12,523,233,06, FHWA would fund the contract to the extent

of $11,647,074.70 and FDOT would fund the contract to the extent of $876,158.36,

and that FDOT would also fund the equal employment opportunity training required

under the contract at an estimated cost of $200,353.26, thus bringing the total

funds planned to be expended by FDOT to $1,076,511.62.

4. FDOT follows a policy that provides for automatic award of the contract

to the lowest responsible bidder if [the] bid is within seven percent (7

percent) of the pre-bid estimate of the cost to construct the project in

question. If the bid submitted by the lowest responsible bidder exceeds seven

percent (7 percent) of the pre-bid estimate of the cost to construct the

project, FDOT follows a policy of reviewing that bid and the pre-bid estimate in

an effort to account for the disparity between the bid and the pre-bid estimate

and to determine whether the bid is or is not competitive. If FDOT finds that

the bid is not competitive, it follows a policy of rejecting all bids and

resoliciting bids for the project. If FDOT finds that the bid is competitive,

it awards the contract to construct the project in question to the bidder who

submitted that bid.

5. Because Petitioner's bid was not within seven percent (7 percent) of

the pre-bid estimate of the cost to construct the Allapattah project, following

the opening of bids, FDOT contacted Petitioner and requested Petitioner to meet

at FDOT's offices in Miami, Florida, to review Petitioner's bid. On June 4,

representatives of Petitioner met with representatives of FDOT in FDOT's Miami

offices, at which time FDOT requested Petitioner to provide FDOT a breakdown of

the lump sum Petitioner quoted for the bid item entitled "Parking Garage"

whereupon Petitioner did so. The breakdown which Petitioner presented to FDOT

at that time showed each category of work involved in constructing the Parking

Garage in accord with FDOT's plans and specifications for the project, and also

showed the price applicable to each such category of work. Before receiving the

above described breakdown, FDOT assured Petitioner that all such information

would be held confidential and would not be published or disclosed to any other

person. Upon receiving the above described breakdown, FDOT informed Petitioner

that the information contained therein was sufficient to enable FDOT to complete

its evaluation of Petitioner's bid. Before the meeting concluded, Petitioner

informed FDOT that if any additional information was needed, to please let

Petitioner know in which event appropriate efforts would be made to remotely

provide such additional information to FDOT.

6. On June 16, FDOT's Technical Review Committee and Contracts Award

Committee met to decide what action to take respecting the bids it had received

on May 28, for award of the contract to construct the Allapattah project. FDOT

then decided: (a) to reject all bids, to reclassify the project from one that is

set aside and restricted to bidding solely among qualified contractors certified

as minority business enterprises to one that is open to competition from all

qualified general contractors, and to re-solicit bids for the project, and (b)

to request FHWA's concurrence therein. On June 17, Petitioner inquired of FDOT

as to what action had been taken respecting award of the contract to construct

the Allapattah project and was then informed that the foregoing decisions had

been made. Petitioner then asked FDOT why it had decided to reject Petitioner's

bid, whereupon FDOT stated that Petitioner's bid was rejected because, when

compared with FDOT's pre-bid estimate of the cost of constructing Allapattah

project, Petitioner's bid appeared unrealistically high and non-competitive.

7. On June 19, Petitioner, filed with FDOT's clerk of agency proceedings a

written notice of protest of FDOT's above described decisions. Such notice of

protest was submitted within the required time and is in accord with applicable

provisions of Section 120.53(5), Florida Statutes, thus stopping FDOT from

taking any further action to implement its above-described decisions. In its

notice of protest, Petitioner, also requested of FDOT an early opportunity to

informally meet and confer respecting Petitioner's protest in an effort to

amicably resolve the same on mutually acceptable terms and conditions.

8. Notwithstanding the fact that FDOT was not to take any further action

to implement its above-described decisions, by letter dated June 20, addressed

to FHWA, FDOT confirmed its above-described decisions and requested FHWA to

concur therewith. On June 27, FHWA expressed its concurrence with FDOT's above-

described decisions.

9. On June 30, representatives of FDOT and Petitioner met informally in

FDOT's central offices in Tallahassee, Florida, at which time Petitioner

presented certain information tending to show that the pre-bid estimate of the

cost to construct the Allapattah project was out of date, unrealistically low

and that Petitioner's bid was realistic and reasonably competitive. The meeting

concluded with an understanding between the parties that FDOT would reconsider

its above-described decisions and, pursuant thereto, representatives of FDOT and

Petitioner would again meet in FDOT's Miami offices on July 2, to review certain

documentation to be presented by Petitioner related to its bid preparation of

its May 28, bid. During the July 2 meeting, FDOT asked Petitioner to provide

certain additional information documenting Petitioner's preparation of its May

28 bid, whereupon Petitioner did so.

10. As a result of the information presented by Petitioner during the June

30 meeting, FDOT realized that the pre-bid estimate of the cost to construct the

Allapattah project, which was initially prepared in October, 1984, by its

architectural/engineering consultant, who also designed the project, the Kaiser

Transit Group, had not been updated to reflect any increase in costs

attributable to inflation. Although FDOT had in February, reviewed its

architectural/engineering consultant's October, 1984 estimated cost of

construction and made minor adjustments thereto in the process of converting

such estimate to the computerized format customarily used by its Estimates

Office, FDOT did not address the impact of inflation on the estimate. Thus,

following the June 30, meeting with Petitioner, FDOT decided to develop a new

estimate for the project, whereupon its Estimates and Architectural Offices

jointly undertook the task of considering inflationary impact. The resulting

new estimate stated a cost of $14,317,608.00 to construct the project. That

cost exceeded the pre-bid estimate that FDOT had used in its initial evaluation

of Petitioner's bid by approximately Two Million Dollars, thus bringing

Petitioner's bid within seven percent (7 percent) of FDOT's estimated cost to

construct the project and causing Petitioner's bid to be subject to FDOT's

automatic award criteria.

11. On June 25, FDOT received competitive bids for award of the contract

to construct another public works project known as Earlington Heights H.O.V.

Station, a parking structure to be situated at Northwest 22nd Avenue and

Northwest 41st Street in Miami, Florida, designated as FDOT Job Nos. 87270-3523,

87270- 3490, and 87003-3515, and as Federal Aid Project Nos. I-95-1 (352)4,

ACIR-95-1(380)4 and F-030-1(33). The Earlington Heights project was also

classified as a public works project set aside and restricted to competitive

bidding solely among qualified contractors certified as disadvantaged business

enterprises. Petitioner submitted a responsive bid in the amount of

$7,449,130.04 for award of the contract to construct the Earlington Heights

project, but was the second lowest bidder. The low bidder was a company known

as Three-W Corporation which had previously been determined by FDOT to be a

qualified contractor and had been previously certified by FOOT as a

disadvantaged business enterprise eligible to bid for award of the contract to

construct the Earlington Heights project. Three W Corporation's low bid for the

Earlington Heights project was $7,080,000.00 and exceeded the pre-bid estimate

to the cost to construct the Earlington Heights project by seventeen and three

tenths percent (17.3 percent).

12. The pre-bid estimate of the cost to construct the Earlington Heights

project was initially prepared in October, 1984, by the Kaiser Transit Group,

the same architectural/engineering consultant that designed and prepared the

initial pre-bid estimate for the Allapattah project in October, 1984. Before

soliciting bids for award of the contract to construct the Earlington Heights

project, FDOT reviewed its architectural/engineering consultant's October, 1984,

estimate which stated that the cost to construct the Earlington Heights project

was $5,481,000.00 and increased the same approximately ten percent (10 percent)

to $6,037,298.36 to reflect FDOT's estimate of the extent construction costs had

increased as a result of inflation between October, 1984, and June, 1986.

13. When FDOT and Petitioner met on June 30, FDOT was engaged in

evaluating Three-W Corporation's low bid for the Earlington Heights project.

FDOT then reconsidered Petitioner's low bid for the Allapattah project and found

that the low bids submitted for each such project comparable in that Three-W

Corporation's low bid established a cost per square foot to construct the

Earlington Heights project of $ 23.02 and Petitioner's low bid established a

cost per square foot to construct the Allapattah project of $22.40.

14. Because the low bid for the Earlington Heights project also exceeded

FDOT pre-bid estimate by more than seven percent (7 percent), FDOT met and

conferred with representatives of Three-W Corporation to review certain

information related to preparation of the bid it had submitted on June 25, for

the Earlington Heights project. FDOT then decided to also develop a new

estimate for the Earlington Heights project, and its Estimates and Architectural

Offices did so. The resulting new estimate increased FDOT's $6,037,298.36 pre-

bid estimate by approximately $1,000,000.00, thus bringing the low bid submitted

by Three-W Corporation within seven percent(7 percent) of the estimated costs to

construct the Earlington Heights project and causing its bid to be subject to

FDOT's automatic award criteria.

15. In successive meetings of FDOT's Technical Review Committee and

Contract Awards Committee on July 16, FDOT concluded its evaluation of the low

bid for the Earlington Heights project and its reconsideration of its decisions

to reject all bids and re-solicit bids for the Allapattah project by deciding

that FDOT's pre-bid estimates of the cost to construct both projects were out-

of-date, unrealistically low, and not indicative of a reasonably competitive

cost to complete either project. Three-W Corporation's bid for the Earlington

Heights project and Petitioner's bid for the Allapattah project appeared

realistic and indicative of reasonably competitive costs to complete each

project. FDOT's decisions in the foregoing respects were confirmed in the

minutes of the July 16, meetings of its Technical Review Committee and its

Contract Awards Committee, and in letters dated July 18 and July 21, addressed

to FHWA, wherein Respondent requested FHWA to concur in FDOT's decisions to

award contracts for construction of the Earlington Heights project and the

Allapattah project to Three-W Corporation and Petitioner, respectively.

16. On July 22, FDOT was informed by FHWA that it concurred in FDOT's

decision to award the contract for construction of the Earlington Heights

project to Three-W Corporation, but that it did not concur in FDOT's decision to

award the contract for construction of the Allapattah project to Petitioner. In

so doing, FHWA stated that it did not concur in FOOT's decision to award the

contract for construction of the Allapattah project because the reasons

expressed in FDOT's June 30, letter to FHWA requesting it to concur in FDOT's

decision to reject all bids and re-solicit bids for the project were more

persuasive than the reasons given by Respondent in support of its July 21,

decision to award the contract for construction of the Allapattah project to

Petitioner.

17. After receiving the July 22, letter from FHWA, FDOT informed

Petitioner of what had transpired and stated that on August 18, the results of

the May 28, bid opening would be formally posted and published to provide public

notice that all bids submitted for award of the contract to construct the

Allapattah project had been rejected and that FDOT would re-advertise the

project to re-solicit bids. Petitioner then requested FDOT to ask FHWA to

reconsider its July 22, decision, but FDOT refused to do so. However, FDOT then

suggested that Petitioner was free to request FHWA to reconsider its July 22,

decision and that if Petitioner succeeded in persuading FHWA to agree that

Petitioner's bid was realistic and to agree to award Petitioner the contract for

construction of the subject project, FDOT would do so. On August 18, FDOT

posted its notice that all bids submitted on May 28, for award of the contract

to construct the Allapattah project were rejected and that it intended to re-

solicit bids.

18. On October 1, FDOT discovered that FHWA had not received certain

documentation related to FDOT's July 16 decisions to award contracts for

construction of the Earlington Heights Project to Three-W Corporation and the

Allapattah project to Petitioner. Accordingly, by letter dated October 1, from

William F. Ventry, FDOT's Deputy Assistant Secretary for Technical Policies and

Engineering Services, to P. E. Carpenter, FHWA's Division Administrator, FDOT

provided such documentation to FHWA and formally requested FHWA to reconsider

its decision not to concur with FDOT's decision to award the Allapattah contract

to Petitioner. By letter dated October 9, from James E. St. John, FHWA's

Assistant Division Administrator, to Mr. Ventry, FHWA replied to FDOT's October

1, letter stating its basis for refusing to concur with FDOT's decision to award

the contract for construction of the Allapattah project to Petitioner and

informed FDOT that FHWA will now deobligate the (federal) funds authorized March

17, (for construction of the project) pending your request for further Federal-

aid activity on this project. Upon receiving FHWA's October 9, letter, it

became apparent to FDOT that FHWA had misapprehended or overlooked certain

critical facts related to FDOT's reconsideration of its decision not to award

the contract for construction of the Allapattah project to Petitioner. Mr.

Ventry requested Vernon E. Dixon, FDOT's Preliminary Estimates Engineer, to

draft an appropriate letter to Mr. St. John, setting out the facts FHWA had

apparently overlooked or misunderstood. By letter from Mr. Dixon to Mr. St.

John dated October 13, FDOT presented those facts to FHWA. On October 14, Mr.

Dixon met and conferred with Mr. St. John and discussed the matters addressed in

the October 13, letter. At the conclusion of that meeting, Mr. St. John

indicated that the information and explanation presented by Mr. Dixon had indeed

caused him to finally obtain a full and complete understanding of the facts and

reasoning which led FDOT to reconsider its earlier decision and to finally

decide to accept Petitioner's bid and to award the contract for construction of

the Allapattah project to Petitioner. Mr. St. John cautioned that he would have

to consult with certain FHWA officials in Washington to determine whether FDOT's

development of a new estimate of the cost to construct the Allapattah project

after bids were received and opened would preclude FHWA from concurring with

FDOT to award the Allapattah project to Petitioner. By letter dated October 22,

from Mr. St. John to Mr. Dixon, FHWA informed FDOT that FHWA would not concur

with FDOT's decision to award the Allapattah project to Petitioner, that the

project is no longer authorized, and that the federal funds authorized for

construction of the project have been deobligated.

19. Although the procedure followed by FDOT in reevaluating Petitioner's

bid for award of the contract to construct the Allapattah project was the same

procedure it followed in evaluating the bid submitted by Three-W Corporation for

award of the Earlington Heights project, FHWA refused to concur with FDOT's

reconsidered decision respecting Petitioner's bid. Petitioner's bid for award

of the contract to construct the Allapattah project was responsive, realistic

and reasonably competitive in all material respects. Any substantial difference

between the amount of Petitioner's bid and FDOT's pre-bid estimate for the

Allapattah project is attributable to inflationary factors. Although FDOT has

now acknowledged these facts to be true with respect to both the Allapattah

project and the Earlington Heights project, FDOT has failed to implement its

decision to accept Petitioner's bid and to award the contract to construct the

Allapattah project to Petitioner.

20. If FDOT had implemented its decision to accept Petitioner's bid and to

award the contract to construct the Allapattah project to Petitioner, the amount

of the contract would have equalled the amount of Petitioner's bid,

$15,193,048.40. If FDOT implements its decision to accept Petitioner's bid and

to award to Petitioner the contract to construct the Allapattah project and FDOT

then obtained no more than the $11,647,074.70 in federal funds committed pre-bid

by FHWA to fund construction of the Allapattah project, FDOT would have to

increase its pre-bid commitment of state funds by $2,469,361.08 to provide

sufficient funds to equal the amount of Petitioner's bid. If FDOT implements

its decision to accept Petitioner's bid and award to Petitioner the contract for

construction, and pays one hundred percent (100 percent) of the cost of

construction from state funds, FDOT would have to increase its pre-bid

commitment of state funds to provide sufficient funds to equal the amount of

Petitioner's bid.

21. Although Petitioner was and continues to be a qualified contractor,

although Petitioner was and continues to be certified as a disadvantaged

business enterprise eligible to bid for award of the contract to construct the

Allapattah project, FDOT has not yet awarded that contract to Petitioner. The

only reasons FD0T has stated for having not yet awarded the contract to

construct the Allapattah project to Petitioner is that FHWA has not concurred

with FDOT's decision to accept Petitioner's bid and to award the contract for

construction of the Allapattah project to Petitioner.

22. FDOT must have FHWA concurrence in order to receive federal funds.

The federal funding participation for this project is approximately 90 percent.

23. FHWA has deobligated federal funds for the project in question.

24. Without federal funding, this project will probably be recycled to the

bidding process as a non-set aside project.

25. If anticipated financing is not available for one project, FDOT

reviews all projects to determine if that one project warrants eliminating other

projects. For those projects where federal funding constitutes such a large

portion of the funding, that project reverts and competes against other projects

in other funds categories because at present, State funds are consumed. This

competing process will resume beginning in 1988.

26. This prioritization process is incorporated in FDOT's 5-year plan (the

plan). The plan serves not only as a work plan but also as a finance plan. The

comptroller uses the plan to certify that a particular project is indeed a part

of the plan and that the money has been provided for.

27. Funds are not available if they are not provided for in the plan. If

changes are to be made after the plan is published, FDOT seeks legislative

concurrence with those changes and without such concurrence, the changes cannot

be made.

CONCLUSIONS OF LAW

The Division of Administrative Hearings has jurisdiction of the subject

matter and the parties to this action. Section 120.57(1), Florida Statutes.

28. The parties were duly noticed pursuant to the notice provisions of

Chapter 120, Florida Statutes.

29. The Petitioner's notice of protest and formal protest was timely filed

in accordance with the provisions of Section 120.53, Florida Statutes.

30. Petitioner correctly asserted that FDOT's preliminary decision to

reject Petitioner's bid was based on dated information which failed to account

for inflationary factors and was therefore unreasonable. However FDOT again

reviewed its bid for the Allapattah project and came up with a pre-bid estimate

which was within seven percent (7 percent) of Petitioner's estimate thereby

causing Petitioner's bid to be subject to FDOT's automatic award criteria. At

that time, FDOT sought FHWA's concurrence with FDOT's decision to award the

construction contract to Petitioner for the Allapattah project. FHWA has

repeatedly refused to concur in FDOT's decision to award Petitioner the subject

construction contract. In keeping with its refusal, FHWA deobligated the

Federal funds for the Allapattah project. Based on FHWA's position, FDOT's

decision to reject all bids and to re-solicit bids appears reasonable under the

circumstances. This is so because the Allapattah project was put forth in the

plan as a project that will be sponsored with ninety percent (90 percent) of

funding derived from a federal source (FHWA). Given the size of this project,

it appears unlikely that it can be funded completely with state funds.

Therefore, FDOT had no alternative other than to reject all bids once the

federal funds for the project were no longer available. In exercising its

discretion in rejecting all bids, FDOT's decision appears reasonable and within

the discretion afforded public bodies in the solicitation and acceptance of bids

for public improvements. See, Liberty County v. Baxter's Asphalt & Concrete,

421 So.2d 505 (Fla. 1982).

31. Petitioner's bid was fairly considered and no further obligations were

owed Petitioner unless or until the contract was awarded and executed. See

Section 3-1, FDOT Standard Specifications which provides, in pertinent part,

that the right is reserved to reject any or all proposals until the contract is

awarded. Also, FDOT reserved the right to cancel any award prior to execution

of the contract by all parties. Section 3-3, FDOT Standard Specifications.

See, Southern Roadbuilders, Inc. v. Lee County, 495 So.2d 189 (Fla. 2d DCA,

1986). In this case, FDOT gave Petitioner's proposal full and fair

consideration and rejected all bids once it became clear that the great majority

of funds (federal) would not be provided. Without the federal funds, the

project could not go forward since state funds (for this project) were not

earmarked and the time has not come for the "prioritization" for this project.

32. State highway agencies, like FDOT, are required to obtain concurrence

by FHWA's division administrator in the award of all federal-aid contracts.

Concurrence in the award is a necessary pre-requisite to federal participation

in construction costs. 23 U.S.C. Section 635.111(a) and (b). Once the

division administration concurs and authorizes work to proceed, the federal

government is then obligated to the state for the amount specified.

33. The Florida Transportation Plan constitutes the functional plan for

FDOT's transportation section of the state comprehensive plan. (Section

339.155(3)(a), Florida Statutes, 1985). The plan provides for institution of a

systematic planning process for development of local, regional and state

transportation. Certain minimum requirements are called for including

development of a budget. Section 339. 155(6), Florida Statutes. Part and

parcel of the plan is a five-year program with specific guidelines and a process

for prioritizing projects. Section 339.155(8)(e), Florida Statutes (1905).

34. FDOT may not enter into any contract which involves the expenditure of

money in excess of amounts budgeted as available for expenditure. Section

339.135(8), Florida Statutes (Supp. 1986). The Allopattah project is not

budgeted in the plan as a project deriving funding completely from state

sources.

35. Finally, FDOT's comptroller has advised that funds are not available

to completely finance this project with state funds. This requirement, a pre-

requisite to FDOT entering into any contract or commitment of funds with

Petitioner, has not been satisfied. Section 339.135(8), Florida Statutes, Supp.

(1986). Therefore, FDOT cannot spend money it does not have.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law it is

RECOMMENDED:

The Florida Department of Transportation enter a Final Order rejecting

Petitioner's bid for Job Nos. 87270-3414, 87270-3519 and 87085-3502 and

readvertise said job.

RECOMMENDED this 3rd day of April, 1987 in Tallahassee, Florida.

_________________________________

JAMES E. BRADWELL

Hearing Officer

Division of Administrative Hearings

The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 3rd day of April, 1987.

ENDNOTES

1/Based on the parties request to submit Proposed Recommended Orders more than

10 days following the close of the hearing, the parties thereby automatically

waived the 30 day time requirement set forth in Rule 28-5.402, Florida

Administrative Code (Rule 221-6.31(2), Florida Administrative Code).

2/Unless otherwise noted, all dates are in 1986.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 86-3457BID

Rulings on Petitioner's Proposed Findings of Fact

1. Paragraph 25, substantially adopted in paragraphs 12, 13 and 14 in the

Recommended order. The remainder of paragraph 25 is rejected as irrelevant to

a determination of the issues posed herein.

2. Paragraph 26 adopted in part in paragraph 15 Recommended Order.

Remainder rejected as irrelevant, speculative and not borne out by the credible

evidence of record.

3. Paragraph 27, rejected based on the credible evidence which reveals

that the federal funds for this project have been deauthorized and deobligated

and FDOT knows that when federal funds have been deobligated, the likelihood of

FDOT receiving such funds is, as best, remote.

4. Paragraph 28, rejected as irrelevant.

5. Paragraph 29, rejected as irrelevant and speculative.

6. Paragraph 32, rejected based on the credible evidence which reveals

that this project was not contemplated by the state construction plan as being

a project which would receive complete funding from State sources.

7. Paragraph 33, rejected based on record evidence received herein which

reveals that there are not adequate state funds to pay 100 percent of the cost

of constructing the Allapattah project.

COPIES FURNISHED:

John A. Barley, Esquire

400 North Meridian Street

Post Office Box 10166

Tallahassee, Florida 32301

Brant Hargrove, Esquire

Department of Transportation

Haydon Burns Building, Mail Station-58

605 Suwannee Street

Tallahassee, Florida 32301

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DIVISION OF TRANSPORTATION

GARCIA-ALLEN/TURNER,

a joint venture,

Petitioner,

vs. CASE NO. 86-3457BID

STATE OF FLORIDA, DEPARTMENT

OF TRANSPORTATION,

Respondent.

_______________________________/

FINAL ORDER

A complete review of the record has been made in this matter and the

Exceptions To Recommended Order of both parties are addressed in this Order.

The Findings of Fact are considered to be supported by competent, substantial

evidence and are incorporated in this Order, with the exception of Finding of

Fact Nos. 7 and 8 which contain conclusions of law concerning the efficacy of a

premature notice of protest which will be addressed herein. The Conclusions of

Law are adopted and incorporated as part of this Order.

PETITIONER' S MOTIONS

1. Petitioner's Motion For Hearing To Consider Written Exceptions is

DENIED. There are no statutory provisions which require an agency to conduct

another hearing to discuss exceptions filed by any party. Fla. Admin. Code Rule

14-6 applies only when the Secretary of Transportation elects to hold the formal

hearing pursuant to Section 120.57(1), Fla. Stat. In the instant proceeding,

the Division of Administrative Hearings conducted the hearing and the pleadings

and transcript provide a sufficient basis for review of the parties' exceptions

to the recommended order.

2. Petitioner's Motion to Abate is DENIED. There appears to be no

statutory basis or provision of the model rules to grant such a motion.

Petitioner has obtained no stay to stop the running of the 90 day time period

set forth in Section 120.59(1), Fla. Stat. for entry of a final order. The

reasonableness of any decisions rendered by Federal Highway Administration

officials are beyond the scope of this bid protest proceeding. The purpose of

this proceeding was to formulate Florida Department of Transportation final

agency action, not to formulate actions of a federal agency.

PETITIONER'S EXCEPTIONS

1. Petitioner's Exceptions 1 through 1.6.2 contest the Hearing Officer's

characterization of the stipulated facts between the parties. The Hearing

Officer has noted in the Recommended Order that minor changes have been made for

ease of reading. A review of the record reveals no substantive changes have

been made by the Hearing Officer and the findings of the Hearing Officer are

supported by competent, substantial evidence. Since the findings are supported

by competent, substantial evidence, the Department may not supplement the

findings of fact. Friends of Children v. Department of Health & Rehabilitative

Services, ____So.2d____, 12 FLW 879 (Fla. 1st DCA March 27, 1987). In addition,

some of Petitioner's objections appear to involve semantics or inconsequential

word substitutions and some are addressed in subsequent findings of fact. This

does not warrant the rejection of these findings in the Final Order.

2. Exception No. 2 is rejected. Finding of fact No. 22 is supported by 23

U.S.C. 112(d) and 23 CFR Section 635.111(a) and by the testimony. (Tr: 10-31-

86: p. 86; 1-21-87: p. 4-15, 25).

3. Exception No. 3 is rejected. The October 22, 1986 letter was

stipulated into evidence as Petitioner's Exhibit 18. Petitioner cannot now be

heard to complain about evidence admitted at the request of Petitioner.

4. Exception No. 4 is rejected. Petitioner admits that there was

testimony presented to support Finding of Fact No. 24. It is the prerogative of

the factfinder to consider the weight and credibility of the evidence submitted.

Heifetz v. Department of Business Regulation, 475 So.2d 1277, 1281 (Fla. 1st DCA

1985)

5. Exception No. 5 is rejected. This finding of fact is supported by

competent, substantial evidence. (Tr: 1-21-87: p. 28-64)

6. Exception No. 6 is rejected. The finding of fact is supported by

Section 339.135, Fla. Stat. (1986 Supp.) and by the record (Tr: 1-21-87: p.

57).

7. Exception No. 7 is rejected. Petitioner's requested findings of fact

23, 24, 30 and 31 are substantially incorporated in the Recommended Order at

Findings of Fact 17, 18, 25, and 26, and any omissions are insignificant or

irrelevant to the issues herein.

8. Exceptions 8 through 13 are rejected. Petitioner's proposed findings

of fact were considered by the Hearing Officer and addressed in the Recommended

Order. The function of determining the weight, credibility and relevancy of the

evidence submitted rests with the Hearing Officer. Since the Recommended Order

is supported by competent, substantial evidence, the Department cannot

substitute, nor supplement the findings of fact.

9. Exception 14 is also rejected. The ultimate factual conclusions of the

Hearing Officer that no funding exists to legally allow award of this project

and that the Department has acted reasonably within its discretion are supported

by competent, substantial evidence. Rejection of all bids on budgeting,

financial and planning factors is not arbitrarily or capriciously grounded. See

Law Brothers Contracting Corp. v. O'Shea, 79 A.D.2d. 1075, 435 N.Y.S.2d 812

(App.Div. 1981). Since there has been no showing of illegality, fraud,

oppression or misconduct, the Hearing Officer's conclusion has a proper legal,

as well as factual basis. Liberty County v. Baxter's Asphalt & Concrete, Inc.,

421 So.2d 505 (Fla. 1982).

RESPONDENT'S EXCEPTIONS

1. Findings of Fact No. 7 and 8 are rejected to the extent they state the

protest was filed within the required time and stopped the agency from

proceeding. Section 120.53(5)(c), Fla. Stat., requires the protest of the award

to be filed "within 72 hours after the posting." This concept is reiterated in

Fla. Admin. Code Rule 14-25.024(2). The statute does not anticipate that a

bidder could prevent an agency from announcing its intended decision by filing a

protest after receipt of bids, but prior to posting. The contract award process

is only stopped upon the timely filing of a protest. Section 120.53(5)(c), Fla.

Stat. The agency must be allowed to formulate a decision to frame the rights of

the substantially affected parties.

A protest to an award which is prematurely filed has no efficacy to act as

a stay. A premature request for hearing simply puts that request in limbo until

official action is taken by the agency to create a point of entry. Ajax

Construction, Inc. v. Department of Corrections, 413 So.2d 779 (Fla. 1st DCA

1982).

Having determined that the Recommended Order is supported by competent,

substantial evidence; it is

ORDERED that the protest of GARCIA-ALLEN/TURNER, A Joint Venture, is

DISMISSED, and all bids received for State Project Nos. 87270-3414, 87270-3519,

and 87085-3502 are hereby REJECTED.

DONE AND ORDERED this 2nd day of July, 1987, at Tallahassee, Florida.

____________________________

KAYE N. HENDERSON, P.E.

Secretary

Department of Transportation

Haydon Burns Building

Tallahassee, Florida 32399

The following information is required by law to be included in all Final

Orders:

Judicial review of agency final orders may be pursued in accordance with

Section 120.68, Florida Statutes, and Florida Rules of Appellate Procedure

9.030(b)(1)(c) and 9.110. To initiate an appeal, a Notice of Appeal must be

filed with the Department's Clerk of Agency Proceedings, Haydon Burns Building,

MS 58, 605 Suwannee Street, Tallahassee, Florida 32399-0450, and with the

appropriate District Court of Appeal within thirty, (30) days of the filing of

this Final Order with the Department's Clerk of Agency Proceedings. The Notice

of Appeal filed with the District Court of Appeal should be accompanied by the

filing fee specified in Section 35.22(3), Florida Statutes.

COPIES FURNISHED:

James E. Bradwell, Hearing Officer

Division of Administrative Hearings

The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

John A. Barley, Esquire

400 North Meridian Street

P. O. Box 10166

Tallahassee, Florida 32301

Brant Hargrove, Esquire

Department of Transportation

Haydon Burns Building, MS 58

Tallahassee, Florida 32399

J. Ted Barefield, Chief

Bureau of Contracts Administration

Department of Transportation

Haydon Burns Building, MS 55

Tallahassee, Florida 32399