00-000494BID Metcalf And Eddy, Inc. vs. Department Of Transportation And Wrs Infrastructure And Environment, Inc. Status: Closed Recommended Order on Monday, July 30, 2001.

Summary: OHM failed to prove Department`s decision to award contract to WRS was in violation of Section 120.57(3)(c); was contrary to Department`s governing statutes, rules or policies, or provisions of request for proposals. OHM`s bid protest should be dismissed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

METCALF & EDDY, INC. , )

)

Petitioner , )

)

vs. ) Case No. 00-0494BID

)

STATE OF FLORIDA , )

DEPARTMENT OF TRANSPORTATION , )

)

Respondent , )

)

and )

)

WRS INFRASTRUCTURE AND )

ENVIRONMENT, INC. , )

)

Intervenor. )

_________________________________)

RECOMMENDED ORDER

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

on March 5 through 8, 2001, in Miami, Florida, before Patricia

Hart Malono, a duly-designated Administrative Law Judge of the

Division of Administrative Hearings.

APPEARANCES

For Petitioner : Jose Garcia- Pedrosa, Esquire

Ruden, McCloskey, Smith,

Schuster & Russel , P.A.

710 Brickell Avenue, Suite 1900

Miami, Florida 33131

For Respondent : Brian F. McGrail, Esquire

Brian Crumbaker, Esquire

Office of the General Counsel

Florida Department of Transportation

Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399-0458

For Intervenor : Betty J. Steffens, Esquire

Samantha Boge, Esquire

Post Office Box 82

Tallahassee, FL 32302-0082

STATEMENT OF THE ISSUE

Whether the Department of Transportation's proposed action,

the award of the contract in question to WRS Infrastructure and

Environment, Inc., is contrary to its governing statutes, its

rules or policies, or the proposal specifications.

PRELIMINARY STATEMENT

The subject of this bid protest is the Department of

Transportation's ("Department") District VI Contamination

Assessment and Remediation Contract for Project and Bid Number

RFP-DOT-99/2000-6026DS, FIN Number 249943 ("District VI

contract"). On October 20, 1999, the Department posted its

Notice of Intent to Award (Revised), in which it stated its

intention to award the District VI contract to WRS

Infrastructure and Environment, Inc., ("WRS"), as the highest-

ranked proposer. On November 4, 1999, Metcalf & Eddy, Inc.,

("Metcalf & Eddy"), which was the third-highest ranked proposer,

filed the Formal Protest of Metcalf & Eddy, Inc. WRS was

permitted to intervene by the Department, and the Department

transmitted Metcalf & Eddy's formal protest to the Division of

Administrative Hearings on January 28, 2000, for assignment of

an administrative law judge. In an order entered February 18,

2000, the Metcalf & Eddy protest was consolidated with the

protest filed by OHM Remediation Services Corp. ("OHM"), DOAH

Case No. 00-0495BID. 1

In its formal protest, Metcalf & Eddy raised four points:

Point One : Neither WRS nor OHM complied

with the requirements of the subject request

for proposal with respect to registration

and SPURS numbers.

Point Two : As was done with the WRS and OHM

proposals, Metcalf & Eddy's proposal should

be re-evaluated and Metcalf & Eddy's scores

raised.

Point Three : One of the bases of the

protest by WRS which led to the aforesaid

re-evaluation was improper and should not

have been considered.

Point Four : Proposal respondents have been

rejected for matters of considerably less

significance than the infractions which

Metcalf & Eddy has currently itemized

against WRS and OHM.

At the hearing and in its proposed findings of fact and

conclusions of law, Metcalf & Eddy has focused on Point One and

Point Four and has apparently abandoned Point Two and Point

Three.

The hearing in these cases was originally scheduled for

May 8 through 12, 2000. A series of discovery disputes arose

between the Department and OHM, and OHM appealed a discovery

order to the First District Court of Appeal. On April 24, 2000,

the Department filed a Motion for Stay Pending Review of Agency

Action, which was granted in an order entered April 27, 2000.

The final hearing was continued, and the cases was placed in

abeyance pending issuance of the mandate of the First District

Court of Appeal. The mandate was issued on December 28, 2000,

and the final hearing was rescheduled for March 5 through 8,

2001.

At the hearing, Metcalf & Eddy presented the testimony of

the following witnesses : Jon Berry, an employee of WRS;

Mauricio Gomez, a contamination impact coordinator and

environmental manager employed by the Department in District VI;

Nancy Lyons, a Contracts Administrator employed by the

Department in District VI; Lillian Costa, an environmental

scientist employed by the Department in District VI; Javier

Rodriguez, a project development engineer employed by the

Department in District VI; Mark S. Blanchard, Metcalf & Eddy's

Vice President for Operations in Florida; Paul Lampley, a

contamination impact coordinator employed by the Department in

District IV; Gustavo Pego, the Department's Director of

Operations in District VI; and John Martinez, the Department's

Director of Production in District VI. Metcalf & Eddy also

elicited testimony during cross examination from two witnesses

presented by OHM, Thomas McSweeney, a vice-president of OHM, and

Curtis Lee, a project manager for OHM. Metcalf & Eddy Exhibits

65 through 67 and 69 were offered and received into evidence. 2

Neither the Department nor WRS presented the testimony of any

witnesses or offered any exhibits into evidence with respect to

the issues raised by Metcalf & Eddy. The Department's Motion

for Official Recognition, which was filed on February 26, 2001,

was granted at the hearing, and official recognition was taken

of the Final Order entered by the Department on August 11, 1998,

dismissing the bid protest filed in 1998 by Metcalf & Eddy

challenging the Department's decision with respect to the award

of a contract by District IV.

The four-volume transcript of the proceedings was filed

with the Division of Administrative Hearings on April 6, 2001.

The parties timely submitted proposed findings of fact and

conclusions of law, which had been considered in preparing this

Recommended Order.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the

final hearing and on the entire record of this proceeding, the

following findings of fact are made:

1. In March 1999, the Department issued a request for

proposals, RFP-DOT-99/2000-6026DS ("RFP"), requesting that

experienced firms submit proposals "for the purpose of providing

district-wide contamination assessment and remediation services"

in the Department's District VI, which consists of M iami-Dade

and Monroe Counties. The RFP solicited proposals for an

indefinite quantity contract, with a term of three years and a

maximum value of $5 million. The proposals were to be presented

in two separate, sealed packages , one containing the proposer's

Technical Proposal and the other containing the proposer's Price

Proposal. Pursuant to Section 1.16 of the RFP, the Technical

Proposal were to be opened and evaluated before the Price

Proposals were opened.

2. Section 1.8.2 of the RFP is entitled "Res ponsiveness of

Proposals" and provides:

All Proposals must be in writing. A

responsive Proposal is an offer to perform

the Scope of Services in accordance with all

the requirements of this Request for

Proposal and receiving a score of seventy

(70) points or more on the Technical

Proposal . Proposals found to be non-

responsive shall not be considered.

Proposals may be rejected if found to be

irregular or not in conformance with the

requirements and instructions herein

contained. A Proposal may be found to be

irregular or non-responsive by reasons that

include, but are not limited to, failure to

utilize or complete prescribed forms,

conditional Proposals, incomplete Proposals,

indefinite or ambiguous Proposals, and

improper or undated signatures.

(Emphasis in original.)

3. Eight firms submitted proposals in response to the RFP,

including WRS, OHM, and Metcalf & Eddy. A three-member

Technical Review Committee was assembled, and the Technical

Proposals were submitted to the Technical Review Committee for

evaluation; all eight Technical Proposals received a score of 70

points or more. The Price Proposals were then opened and

evaluated in accordance with the criteria set forth in the RFP.

4. The Department posted a Notice of Intent to Award on

August 26, 1999, in which it stated its intention to award the

District VI contract to OHM. OHM was the highest-ranked

proposer with a total score of 125.879 points; WRS was the

second-highest-ranked proposer with a total score of 125.675

points; and, Metcalf & Eddy was the third-highest-ranked

proposer with a total score of 118.569 points. It was noted in

the Notice of Intent to Award that all eight proposals were

accepted as responsive.

5. On August 31, 1999, WRS filed a notice of its intent to

protest the intended award of the District VI contract to OHM,

and it filed its Formal Protest and Petition for Formal

Administrative Hearing on September 10, 1999. Metcalf & Eddy

did not file a protest with regard to the August 26, 1999,

Notice of Intent to Award.

6. As a result of information obtained by the Department

subsequent to the filing of WRS's protest, OHM's proposal was

re-evaluated, and, on October 20, 1999, the Department posted a

Notice of Intent to Award (Revised), in which it stated its

intention to award the District VI contract to WRS. The scores

of WRS and Metcalf & Eddy remained unchanged as a result of the

re-evaluation of OHM's proposal, but OHM's score decreased to

124.212 points. As a result, WRS became the highest-ranked

proposer, OHM became the second-highest-ranked proposer, and

Metcalf & Eddy remained the third-highest-ranked proposer.

7. On October 25, 1999, Metcalf & Eddy filed its Notice of

Intent to Protest with the Department, and it filed the Formal

Protest of Metcalf & Eddy, Inc., on November 4, 1999. A

settlement conference was conducted on November 17, 1999, but

the Department and Metcalf & Eddy were unable to resolve the

issues raised in Metcalf & Eddy's protest. As a result, the

Formal Protest of Metcalf & Eddy, Inc., was referred to the

Division of Administrative Hearings on January 28, 1999, and

initiated this proceeding.

8. On December 9, 1999, the Department's Awards Committee

met to re-consider its decision of October 15, 1999, to award

the District VI contract to WRS in light of the issues raised in

the protests filed by OHM and Metcalf & Eddy. The Awards

Committee decided not to disturb the decision reflected in the

October 20, 1999, Notice of Intent to Award (Revised).

SPURS Number

9. Section 1 of the RFP provides that th e "State of

Florida Department of Transportation Request for Proposal

Contractual Services Acknowledgement ( Pur #7033) . . . will be

handed out at the mandatory pre-proposal meeting." The form

itself is entitled "State of Florida Request for Proposal,

Contractual Services Bidder Acknowledgement" ("Bidder

Acknowledgement form"). A box that appears near the top of the

Bidder Acknowledgement form is labeled "STATE PURCHASING

SUBSYSTEM (SPURS) VENDOR NUMBER." 3

10. The Bidder Acknowledgement form also includes a

statement of General Conditions, which provides in pertinent

part:

1. Execution of Proposal : Proposal must

contain a manual signature of authorized

representative in the space provided above.

Proposal must be typed or printed in ink.

Use of erasable ink is not permitted. All

corrections made by proposer to his proposal

price must be initialed. The company name

and SPURS vendor number shall appear on each

page of the bid as required. . . .

11. WRS, OHM, and Metcalf & Eddy included an executed copy

of the Bidder Acknowledgement form at the beginning of their

proposals. The Bidder Acknowledgement form is not a part of

either the Technical Proposal or the Price Proposal.

12. Metcalf & Eddy inserted "042428218-003" in the box

reserved for the SPURS number; WRS inserted "P13202"; and OHM

inserted "#94-1259053." "042428218-003" is a SPURS number

assigned by the Department of Management Services, and Metcalf &

Eddy is a vendor registered with that department. "P13202" is

not a SPURS number. "#94-1259053" is OHM's federal

identification number, and is the number that they commonly use

as their SPURS number in the proposals they submit to the

Department. Both WRS and OHM are registered as interested

vendors with the Department of Management Services, pursuant to

Section 287.042(4), Florida Statutes. 4

13. Metcalf & Eddy included its name and its SPURS number

on each page of the proposal it submitted in response to the

District VI RFP. Neither WRS nor OHM included the name of the

company and the SPURS number on each page of their proposals.

14. There is no requirement in the District VI RFP that

the name of the company and the SPURS number be included on each

page of the proposal.

15. Section 1.8.6 of the RFP is entitled "Waivers" and

provides:

The Department may waive minor informalities

or irregularities in Proposals received

where such is merely a matter of form and

not substance, and the correction or waiver

of which is not prejudicial to other

Proposers. Minor irregularities are defined

as those that will not have an adverse

effect on the Department's interest and will

not affect the price of the Proposal by

giving a Proposer an advantage or benefit

not enjoyed by other Proposers.

Paragraph 6 of the General Conditions set forth on the Bidder

Acknowledgement form provides in pertinent part: " AWARDS : As

the best interest of the State may require, the right is

reserved to reject any and all proposals or waive any minor

irregularity or technicality in proposals received. . . ."

16. Nancy Lyons is the Contractual Services Unit

Administrator for District VI. Ms. Lyons reviews the proposals

to determine if they are responsive and to determine if an

irregularity or omission is minor and can be waived under the

terms of the RFP. It is Ms. Lyons practice to waive as a minor

irregularity the omission of a SPURS number or the inclusion of

an incorrect SPURS number to be a minor irregularity because, if

a vendor is registered with the Department of Management

Services, the SPURS number is readily available to the

Department. In addition, the SPURS number does not effect

either the technical content of the proposal or the price in the

proposal.

17. The WRS and OHM proposals were not rejected by the

Department's District VI Contractual Services Unit even thou gh

WRS and OHM failed to include their SPURS numbers on the Bidder

Acknowledgement form and failed to include the company name and

SPURS number on each page of their proposals.

Disparate treatment .

18. In 1998, Metcalf & Eddy submitted a proposal in

response to a Request for Proposals issued by the Department's

District IV. In its Price Proposal, Metcalf & Eddy failed to

include a price or a zero in three blanks reserved for the daily

rate, weekly rate, and monthly rate for an X-Ray Fluorescence

( XRF) Spectrum Analyzer; Metcalf & Eddy included as the "Total"

for this item "$0.00." Metcalf & Eddy's District IV proposal

was rejected as non-responsive as a result of these omissions.

19. Metcalf & Eddy filed a Formal Written Protest and

Request for Formal Administrative Hearing and challenged the

decision to reject its proposal as non-responsive. After

informal efforts to resolve the issue raised in the protest were

unsuccessful, Metcalf & Eddy withdrew its protest; the

Department entered a Final Order on August 11, 1998, dismissing

the protest.

Summary

20. The evidence presented by Metcalf & Eddy is not

sufficient to establish that the Department's decision to accept

the WRS and OHM proposals as responsive is clearly erroneous,

contrary to competition, arbitrary, or capricious. The omission

of the SPURS number on the Bidder Acknowledgement form is a

minor irregularity that did not give WRS or OHM a substantial

advantage over Metcalf & Eddy and was of no consequence to the

Department because it has ready access to the SPURS numbers

included in the database of interested vendors maintained by the

Department of Management Services. Furthermore, WRS and OHM

were not required to include their company name and SPURS number

on each page of the proposal because this requirement was not

included in the specifications in the RFP. Finally, Metcalf &

Eddy has failed to present evidence to establish that it is the

victim of disparate treatment by the Department; the decision of

the Department to reject the proposal it submitted to

District IV in 1998 is irrelevant to the issues raised in this

proceeding.

CONCLUSIONS OF LAW

21. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and of

the parties thereto pursuant to Sections 120.569 and 120.57(1),

Florida Statutes (1999).

Standing

22. In its Proposed Recommended Order, the Department

contends that Metcalf & Eddy has no standing to pursue its bid

protest because it is the third-highest-ranked proposer for the

District V I contract. This contention is rejected. The facts

in this case are distinguishable from those in Preston Carroll

Co. v. Florida Keys Aqueduct Authority , 400 So. 2d 524 (Fla. 3d

DCA 1981), the case on which the Department relies in its

argument. Preston Carroll was the third-lowest bidder and filed

a bid protest challenging the agency's intended award. Preston

Carroll tried to establish its standing by proving that it was,

in fact, the second lowest bidder; it failed in this proof, and

the court held that, as the third-lowest bidder, it had no

substantial interest that could be resolved in the bid protest.

Id. at 525. In this case, on the other hand, Metcalf & Eddy has

asserted that the proposals of both WRS and OHM, the highest-

and second-highest-ranked proposers, should be rejected as non-

responsive because they neither included their SPURS number on

the Bidder Acknowledgement form or the company name and SPURS

number on each page of its proposal. Were Metcalf & Eddy to

succeed in its challenge, it would be entitled to an award of

the contract, and, therefore, it does have a substantial

interest in the outcome of the bid protest. See Agrico Chemical

Co. v. Department of Environmental Regulation , 406 So. 2d 478

(Fla. 2d DCA 1981).

Responsiveness of WRS and OHM proposals

23. Metcalf & Eddy's bid protest was filed pursuant to

Section 120.57(3), Florida Statutes (1999), which 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.

24. Metcalf & Eddy, therefore, has the burden of proof by

a preponderance of the evidence. Specifically, in accordance

with the issues presented in its formal protest, Metcalf & Eddy

has the burden of proving by a preponderance of the evidence

that the Department's decision accept the proposals of WRS and

OHM as responsive was invalid under the standards set forth in

Section 120.57(3)(f), Flori da Statutes. See

Section 120.57(1)(j), Florida Statutes (1999)("[F] indings of

fact shall be based upon a preponderance of the evidence, except

in licensure disciplinary proceedings or except as otherwise

provided by statute.").

25. The requirement in Section 120.57(3)(f) that "the

administrative law judge is to conduct a de novo proceeding" was

defined by the court in State Contracting and Engineering Corp.

vs. Department of Transportation , 709 So. 2d 607, 609 (Fla. 1st

DCA 1998), as "a form of intra-agency review. 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." See also Intercontinental

Properties, Inc. v. State Department of Health and

Rehabilitative Services , 606 So. 2d 380, 386 (Fla. 3d DCA 1992).

26. As set forth in Section 120.57(3)(f), Florida

Statutes, an agency must exercise its discretion in a manner

that is not "clearly erroneous, contrary to competition,

arbitrary, or capricious." "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). The standard has more recently been

formulated by the court in Dravo Basic Materials Co., Inc. v

State Department of Transportation , 602 So. 2d 632, 634 n. 3

(Fla. 2d DCA 1992), as follows: "If an administrative decision

is justifiable under any analysis that a reasonable person would

use to reach a decision of similar importance, it would seem

that the decision is neither arbitrary nor capricious." The

court in Dravo also observed this "is usually a fact-intensive

determination." Id. at 634.

27. In Section 287.012(17), Florida Statutes (2000), an

"agency" is defined as "any of the various state officers, [and]

departments . . . of the executive branch of government."

Section 287.032(2), Florida Statutes (2000), provides that one

of the purposes of the Department of Management Services is

"[t]o provide uniform contractual service procurement policies,

rules, procedures, and forms for use by the various agencies in

procuring contractual services." The Department of Management

Services has, accordingly, enacted rules governing the

competitive procurement process in Florida, which are applicable

to the Department.

28. Rule 60A-1.002(9), Florida Administrative Code, which

was adopted by the Department of Management Services to

implement various provisions of Chapter 287, provides that

"[t]he agency shall reserve the right to waive any minor

irregularities in an otherwise valid bid or proposal or offer to

negotiate. Variations which are not minor cannot be waived."

29. The Department of Management Services has defined

"minor irregularity" in Rule 60A-1.001(17), Florida

Administrative Code, as

[a] variation from the invitation to bid or

invitation to negotiate or request for

proposal terms and conditions which does not

affect the price of the commodities or

services, or give the bidder or offeror an

advantage or benefit not enjoyed by other

bidders or offerors, and does not adversely

impact the interests of the agency

30. An agency is given wide discretion in soliciting and

accepting competitive bids and proposals. Department of

Transportation v. Groves-Watkins Constructors , 530 So. 2d 912,

913 (Fla. 1988) 5 ; Liberty County v. Baxter's Asphalt and

Concrete, Inc. , 421 So. 2d 505, 507 (Fla. 1982). In Tropabest

Foods, Inc. v. State of Florida, Department of General Services ,

493 So. 2d 50, 52 (F la. 1st DCA 1986), the court found that an

agency has the discretion to waive an irregularity in a bid when

the irregularity is not material, that is, when it does not give

the bidder "a substantial advantage over the other bidders."

31. On the basis of the findings of fact herein, Metcalf &

Eddy has not proven by a preponderance of the evidence that the

Department's decision to accept the proposals of WRS and OHM as

responsive was contrary to its governing statutes, rules or

policies, or the provisions of the RFP or that its decision was

clearly erroneous, contrary to competition, arbitrary, or

capricious. First, even if there were such a provision in the

RFP, a company is not required to register with the Department

of Management Services as an interested vendor as a pre-

condition for submitting a bid or proposal to a state agency.

See Section 287.042(4)(a), Florida Statutes (1999)(The list of

interested vendors maintained by the Department of Management

Services may "not be used . . . to exclude any interested vendor

from bidding."). Therefore, a proposer's failure to include a

SPURS number on the Bidder Acknowledgement form cannot be used

as a basis for finding a proposal non-responsive. In addition,

the failure of WRS and OHM to include their correct SPURS number

on the Bidder Acknowledgement form is a minor irregularity: The

omission did not affect the price of the proposals; WRS and OHM

were not placed at a competitive advantage with respect to

Metcalf & Eddy or the other proposers; and the Department was

not adversely impacted because it has ready access to SPURS

numbers in the state's database.

32. Second, there is nothing in the RFP that requires a

proposer to include the company's name and SPURS number on each

page of the proposal, and, even if there were, the failure of

WRS and OHM to include the company name and SPURS number on each

page of their proposals was a minor irregularity that could be

waived by the Department.

33. Finally, it may be that the Department's decision to

reject the proposal Metcalf & Eddy submitted to District IV in

1998 would have been reversed had Metcalf & Eddy pursued the bid

protest it filed challenging that decision. However, the only

decision at issue in the instant case is the Department's

decision that the proposals submitted by WRS and OHM in response

to the District VI RFP were responsive to the specifications of

the RFP. The Department's decision in 1998 to reject a proposal

submitted by Metcalf & Eddy to District IV because it left three

spaces blank in its Price Proposal is irrelevant to determining

whether the Department's decision to accept the proposals of WRS

and OHM was contrary to its governing statutes, rules or

policies, or the provisions of the RFP or clearly erroneous,

contrary to competition, arbitrary, or capricious.

34. Based on the proof herein, Metcalf & Eddy has not

established a basis for invalidating the Department's decision

to award the District VI contract to WRS.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Department of Transportation

issue a final order dismissing the Formal Protest of Metcalf &

Eddy, Inc.

DONE AND ENTERED this 30th day of July, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

PATRICIA HART MALONO

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 30th day of July, 2001.

ENDNOTES

1 / On November 1, 1999, OHM, the second-highest-ranked bidder,

filed its Formal Protest and Petition for Formal Administrative

Hearing, which was also forwarded to the Division of

Administrative Hearings on January 28, 2000. The actions were

consolidated for purposes of these proceedings because both OHM

and Metcalf & Eddy relied on the same witnesses at the hearing.

Because the two cases present separate legal and factual issues,

the undersigned requested that the parties submit separate

proposed findings of fact and conclusions of law for the OHM and

the Metcalf & Eddy protests. By order entered contemporaneously

with this Recommended Order, these cases have been severed, and

a separate Recommended Order has been entered in DOAH Case No.

00-0494BID.

2 / In its Proposed Recommended Order, Metcalf & Eddy also relies

on OHM's Exhibits 1, 2, 3, 4, 7, and 8.

3 / The SPURS number is the number assigned to a vendor when it

registers with the Department of Management Services as an

interested vendor, pursuant to Section 287.042(4)(a), Florida

Statutes (1999)(As part of its responsibilities with respect to

competitive procurements, the Department of Management Services

is charged with developing and maintaining a list of interested

vendors.). See Rule 60A-1.006(1), Florida Administrative Code.

4 / The evidence establishes that OHM was registered, and Metcalf

& Eddy concedes in its Formal Protest that WRS was registered.

5 / Although the ruling of the court in Groves-Watkins that an

agency's decision "to award or reject all bids" may be

overturned only if the agency acted "fraudulently, arbitrarily,

illegally, or dishonestly" has been limited in

Section 120.57(3)(f), Florida Statut es, to an agency's decision

to reject all bids, there is nothing in the statute to indicate

that the Legislature intended to change the degree of deference

given to agency decisions to award a contract pursuant to the

competitive procurement process.

COPIES FURNISHED:

William C. Davell, Esquire

May, Meacham & Davell, P. A.

One Financial Plaza, Suite 2602

Fort Lauderdale, Florida 33394-16097

Brian F. McGrail, Esquire

Office of the General Counsel

Florida Department of Transportation

Hayden Burns Building

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399-0458

Jose Garcia- Pedrosa, Esquire

Ruden, McClosky, Smith, Schuster

& Russell, P.A.

701 Brickell Avenue, Suite 1900

Miami, Florida 33131

Betty J. Steffens, Esquire

Post Office Box 82

Tallahassee, Florida 32303-0082

James C. Myers, Clerk

Department of Transportation

Haydon Burns Building

Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399-0450

Pamela Leslie, General Counsel

Department of Transportation

Haydon Burns Building

Mail Station 58

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.