00-004853BID Metcalf And Eddy, Inc. vs. Department Of Transportation Status: Closed Recommended Order on Thursday, April 5, 2001.

Summary: Department waived minor irregularity and thereby did not afford successful bidder a competitive advantage.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

METCALF & EDDY, INC. , )

)

Petitioner , )

)

vs. ) Case No. 00-4853BID

)

DEPARTMENT OF TRANSPORTATION , )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

by video teleconference on January 24, 2001, with the parties

appearing from Fort Lauderdale, Florida, before J. D. Parrish, a

designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner : Jose Garcia- Pedrosa, Esquire

Ruden McClosky Smith Schuster

& Russell, P.A.

701 Brickell Avenue, Suite 1900

Miami, Florida 33131

For Respondent : Brian A. Crumbaker, Esquire

Florida Department of Transportation

Haydon Burns Building

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399-0458

STATEMENT OF THE ISSUES

Whether the Respondent's intended action to award the bid

to C.G.R. Construction Company, Inc. ( CGR), and Cross

Environmental Services, Inc. (Cross) was clearly erroneous,

arbitrary, capricious, or contrary to competition as alleged by

the Petitioner, Metcalf & Eddy, Inc. ( Metcalf).

PRELIMINARY STATEMENT

The Respondent, the Florida Department of Transportation

(Department) released an Invitation to Bid ( ITB) in connection

with District-Wide Demolition Contract(s) of Indefinite Quantity

for the Department's District IV. The ITB (identified as ITB-

DOT-00-01-4009) solicited responses from contractors interested

in performing the work and recognized that two successful

bidders would be chosen by the agency. The Department received

three responses to the ITB. The Petitioner's response was not

selected by the Department.

The Petitioner timely filed a Notice of Protest and Protest

Bond with the Department. Its Formal Protest was also timely

filed. The successful bidders did not participate in the

protest. On December 5, 2000, the Department referred the

matter to the Division of Administrative Hearings for formal

proceedings. The parties specifically agreed to waive the

statutory period set forth in Section 120.57(3)(e), Florida

Statutes.

The case was scheduled for final hearing on January 24,

2001. At the hearing, the Petitioner presented the testimony of

Mark Blanchard, a Vice-President of Operations for Metcalf in

Florida. The Respondent presented testimony from Susan Day, the

Property Management Administrator for the Department's District

IV. The parties submitted seven joint exhibits numbered 1-3 and

5-8 that were admitted into evidence. Such exhibits are fully

identified in the record.

The transcript of the proceeding was filed with the

Division of Administrative Hearings on February 12, 2001.

Thereafter the parties timely submitted proposed Recommended

Orders that have been considered in the preparation of this

order.

FINDINGS OF FACT

1. The Department issued ITB-DOT-00-01-4009 for District-

Wide Demolition Contract(s) of Indefinite Quantity for its

District IV.

2. The ITB recognized that the Department intended to

select two bids from those submitted. The ITB further

contemplated that, based upon the best financial interest of the

Department , the Respondent would enter into an indefinite

quantity contract with each successful bidder.

3. Typically, the Department determines that work

encompassed by the ITB is necessary. It then designates a

company to do that job based upon three considerations: the

total fee to be charged for the assignment (using the bids

submitted and giving greater weight to the company with the

lower fee); the time frame within which the bidder can perform

the work; and the quality of past work of the bidder.

4. The Respondent disclosed the foregoing information to

all companies submitting bids for this ITB. Three companies

timely submitted responses to the ITB : CGR, Cross, and the

Petitioner, Metcalf.

5. The bids were opened on September 28, 2000. The

Department discovered errors on the totals submitted by CGR and

Cross. Without correcting or amending any line item, the

Department recalculated the totals for those two companies.

6. After the recalculations, the bids were ranked lowest

to highest as: Cross ($2,315,775.00); CGR ($3,500,167.50); and

Metcalf ($8,511,774.50). The mathematical correction to CGR's

bid increased its total but did not make its bid higher than

Metcalf's. Metcalf remained $5,000,000 more than the closest

bidder.

7. All bidders provided a bid bond in order to ensure that

the bidder would meet all requirements of the ITB and execute a

contract as specified by the ITB.

8. The ITB provided that each bidder would submit proof of

appropriate Workers' Compensation ( WC) insurance in order for

the bid to be considered. The ITB further specified that the

bidder must submit the certificate of WC coverage with its

response to the ITB or have one on file with the Department in

order to be considered. The language requiring WC with the bid

submission was subsequently removed from the Department's form

ITB.

9. Nevertheless, in the instant ITB package, the bidders

were required to complete a form that was captioned "Workman's

Compensation Insurance Certification." The form required a

certification that the bidder had WC coverage and that the

current insurance certificate had been previously submitted to

the Department or was attached to the form.

10. CGR submitted the form with the certification checked

off that indicated it had previously submitted its WC coverage

to the Department.

11. Following the bid opening for this ITB, the Department

began its review to verify all documentation was included and

signed by the bidders. The Department verified the insurance

companies referenced by the bids to ensure that they were

authorized to do business in Florida. The Department attempted

to locate CGR's current WC insurance certificate.

12. Due to the internal filing systems used by the

Department, it could not definitely verify that CGR's current WC

certificate was or was not on file with the Respondent.

13. Because the documentation was not readily available to

the Department, the Respondent contacted CGR and requested a

copy of that company's WC certificate. A copy of a certificate

of liability insurance binder that certified CGR possessed WC

insurance effective October 2, 2000, was transmitted by

facsimile to the Department. The transmission of this

information occurred after September 28, 2000, but before the

bid results were posted.

14. After receipt of CGR's WC information, the Department

completed its review of the bid responses and the bid tabulation

was posted on October 6, 2000. The posting announced the

successful bidders for the ITB as Cross and CGR.

15. Metcalf timely gave notice of its intent to challenge

the bid award and timely filed its formal protest in this

matter.

16. Metcalf maintains that CGR failed to meet the terms of

the ITB by not having on file with the Department a current WC

certificate on the date the bids for this ITB were submitted.

Further, Metcalf maintains that it is contrary to law to allow

CGR to supplement its bid with the required information.

17. The ITB provided the following language:

The Department reserves the right to reject

any or all bids and to waive minor technical

flaws or deficiencies.

18. Whether or not CGR had filed a copy of its current WC

coverage with the Department on or before September 28, 2000, is

unknown. CGR certified in its response it had. The Department

was unable to locate the WC certificate. It is undisputed that

prior to October 6, 2000, the date of posting, the bidder had

submitted a current WC certificate.

19. It is further established by the record that CGR is

able to obtain WC coverage. Based upon old contract files

maintained by the Department (in which CGR had participated and

which the Department was able to locate), it is certain CGR had

appropriate WC coverage.

20. CGR did not obtain a competitive advantage by being

allowed to fax the current WC certificate prior to the bid

posting. All bidders were required to provide WC coverage for

the term of the contract. Therefore, all bidders would incur

the same expense in performance of this contract. Metcalf did

not bear an economic hardship because the Department allowed CGR

to fax its current WC certificate prior to posting. The cost of

WC coverage would not support the $5,000,000 difference between

the two bidders.

CONCLUSIONS OF LAW

21. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of these

proceedings.

22. Section 120.57(3)(f), Florida Statutes, provides:

(f ) In a competitive-procurement protest,

no submissions made after the bid or

proposal opening amending or supplementing

the bid or proposal shall be considered.

Unless otherwise provided by statute, the

burden of proof shall rest with the party

protesting the proposed agency action. 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 or proposal specifications. The

standard of proof for such proceedings shall

be whether the proposed agency action was

clearly erroneous, contrary to competition,

arbitrary, or capricious. In any bid-

protest proceeding contesting an intended

agency action to reject all bids, the

standard of review by an administrative law

judge shall be whether the agency's intended

action is illegal, arbitrary, dishonest, or

fraudulent.

23. In this case the Petitioner argues that the submission

of the WC certificate after the bid opening was an impermissible

amendment or supplement to CGR's bid proposal.

24. The burden of proof rests with the Petitioner to

establish by a preponderance of the evidence that the proposed

agency award to CGR is clearly erroneous, contrary to

competition, arbitrary, or capricious. It has failed to meet

that burden.

25. In this case the bidder represented that its current

WC coverage was on file with the agency. The Department was

unable to locate that information. The Petitioner may have

proved the Department has poor filing systems but it has not

established that CGR did not provide a certificate to the

Department. In fact, in past dealings with the Department CGR

has provided appropriate WC certificates.

26. Moreover, CGR is insurable for WC. Thus the chief

requirement of the Department is met. CGR provided a current

certificate prior to the posting of the bids.

27. Based upon the foregoing, it cannot be concluded that

the Department acted erroneously or capriously when it allowed

the faxed certificate. The Department is entitled to verify the

requirements of the ITB and to waive minor deficiencies so long

as one bidder does not receive a competitive advantage. In this

case, it is concluded that CGR did not obtain a competitive

advantage as all bidders were required to provide the WC

coverage. The prices submitted by the bidders contemplated the

same performance criteria. No bidder was adversely impacted by

the Department's actions in this cause.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Department of Transportation

enter a Final Order dismissing the Petitioner's Formal Protest.

DONE AND ENTERED this 5th day of April, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

J. D. Parrish

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488- 9675 SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 5th day of April, 2001.

COPIES FURNISHED:

Jose Garcia- Pedrosa, Esquire

Ruden McClosky Smith Schuster

& Russell, P.A.

701 Brickell Avenue, Suite 1900

Miami, Florida 33131

Brian A. Crumbaker, Esquire

Florida Department of Transportation

Haydon Burns Building

605 Suwannee Street, MS 58

Tallahassee, Florida 32399-0458

James C. Myers

Clerk of Agency Proceedings

Department of Transportation

Haydon Burns Building, MS 58

605 Suwannee Street

Tallahassee, Florida 32399-0450

Pamela Leslie, General Counsel

Department of Transportation

605 Suwannee Street

Tallahassee, Florida 32399-0450

Thomas F. Barry, Secretary

Department of Transportation

Haydon Burns Building

605 Suwannee Street

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.