88-004123BID Oscar Nunez Service vs. Department Of Transportation Status: Closed Recommended Order on Thursday, September 1, 1988.

Summary: Petitioner's protest was untimely because it was not filed with agency clerk prior to the date on which bids were to be received

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

OSCAR NUNEZ SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 88-4123BID

)

DEPARTMENT OF TRANSPORTATION )

)

Respondent. )

_______________________________)

RECOMMENDED ORDER

A hearing was held on August 30, 1988, by telephone conference call, to

consider a Motion for Summary Judgment filed by the Department of Transportation

in this matter. Oscar Nunez, the owner of Oscar Nunez Services, represented

Petitioner, and the Department of Transportation, Respondent, was represented by

E. Clay McGonagill Jr., Esquire.

The issue raised by the Motion for Summary Judgment is whether Petitioner's

Protest of Respondent's bid solicitation was timely filed. There is no dispute

between the parties concerning the relevant facts which are set forth below, and

on the basis of which this Recommended Order is entered.

FINDINGS OF FACT

1. On or about July 21, 1988, Respondent advertised and solicited bids for

a series of mini-contracts involving construction and maintenance programs.

Among the jobs contained in this solicitation was State Job Number 15906-9076

for maintenance sidewalk repair in Pinellas County. Specific notice of

Respondent's Rule 14-25.024, Florida Administrative Code, was given in the

solicitation for bids.

2. Petitioner is a certified disadvantaged business enterprise performing

maintenance sidewalk repair.

3. Under the terms of the July 21, 1988, solicitation, bids were to be

received by August 18, 1988.

4. No bids were received on State Job Number 15906-9076.

5. On August 25, 1988, Petitioner filed a Notice of Protest, dated August

22, 1988, with Respondent's agency clerk. Petitioner's Protest challenges the

terms of this bid solicitation, including the length of time to perform the

work, and the size of the job.

6. Petitioner did file a Notice of Protest with the Respondent's local

office in Bartow, Florida on August 18, 1988, the day bids were to be received

on this job.

CONCLUSIONS OF LAW

7. The Division of Administrative Hearings has jurisdiction over the

parties, and the subject matter in these causes. Section 120.53(5), Florida

Statutes. The issue raised by the Respondent's Motion for Summary Judgment is

whether Petitioner's Protest was timely filed.

8. Respondent has adopted Rule 14-25.024, Florida Administrative Code,

which states, in pertinent part:

(1) Any person adversely affected by a bid

solicitation shall file a notice of protest,

in writing, prior to the date on which bids

are to be received, and shall file a formal

written protest within ten days after filing

the notice of protest...

(3) All notices of protest and formal

protests shall be filed with the Clerk of

Agency Proceedings, Mail Station 58, Room 562

Haydon Burns Building, Tallahassee, Florida.

Filing is complete upon delivery to and

receipt by the Clerk of Agency Proceedings...

(4) A protest is not timely filed unless both

the notice of protest and the formal protest

are received by the Clerk of Agency Proceedings

within the required time limits.

(Emphasis Supplied.)

9. The Protest which was filed by Petitioner with the Respondent's Clerk

on August 25, 1988, was untimely since it was clearly not filed with the Agency

Clerk prior to the date on which bids were to be received, August 18, 1988.

There is no provision in Respondent's rules for filing of a Protest in a local

office of the agency on the day bids are to be received. A validly enacted rule

of the Respondent must be given effect in this proceeding, and the plain meaning

of the terms used in Rule 14-25.024 requires that Respondent's Motion for

Summary Judgment be granted and this proceeding be dismissed, as untimely filed.

Capeletti Bros. v. Department of Transportation, 499 So.2d 855 (Fla. 1st DCA

1986). While the undersigned Hearing Officer cannot enter a Final Order of

dismissal in this proceeding, it is recommended that Respondent enter said Final

Order.

10. Since no bids were received in response to this solicitation, the

Respondent has indicated that the job in question will be rebid, and Petitioner

will have an opportunity at that time to timely file any Protest of the terms of

that solicitation prior to the date upon which those bids are to be received.

RECOMMENDATION

Based upon the foregoing, it is recommended that Respondent enter a Final

Order dismissing Petitioner's Protest of the bid solicitation for State Job

Number 15906-9076.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 1st day of

September, 1988.

_________________________________

DONALD D. CONN

Hearing Officer

Division of Administrative Hearings

The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 1st day of September, 1988.

COPIES FURNISHED:

R. Clay McGonagill, Jr., Esquire

Department of Transportation

Haydon Burns Building, Mail Station 58

Tallahassee, Florida 32399-0458

Oscar Nunez, Owner

Oscar Nunez Services

819 Northeast 42nd Terrace

Ocala, Florida 32670

Kaye N. Henderson, Secretary

Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399-0450

Thomas H. Bateman, Esquire

General Counsel

562 Haydon Burns Building

Tallahassee, Florida 32399-0450