02-001114BID Aqua-Terra, Inc. Of Martin County vs. Department Of Environmental Protection Status: Closed Recommended Order on Wednesday, April 10, 2002.

Summary: Petitioner elected to withdraw the bid protest; there are no disputed issues of material fact to address; recommended that the Department enter a Final Order dismissing the bid protest filed by Petitioner.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AQUA - TERRA, INC. OF Martin )

COUNTY, )

)

Petitioner, )

)

vs. ) Case No. 02 - 1114BID

)

DEPARTMENT OF ENVIRONMENTAL )

REGULATION, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this

case by video teleconference with the Petitioner appearing

from West Palm Beach, Florida, and the Respondent in

Tallahassee, Florida, on April 9, 2002, before J. D. Parrish,

a designated Administr ative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Carlton Oaks, President

Aqua - Terra, Inc. of Martin County

Post Office Box 2104

Hobe Sound, Florida 33475 - 1956

For Respondent: Marshall G. Wiseheart, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399 - 3000

STATEMENT OF THE ISSUE

Whe ther the Petitioner is entitled to the award of Bid

Number 2002024C as the lowest responsive bidder.

PRELIMINARY STATEMENT

On December 20, 2001, the Respondent, Department of

Environmental Protection (Department or Respondent), issued

an Invitation to Bid (ITB) for the mechanical removal of

exotic plants within the Sebastian Inlet State Park (the

project is identified in this record as Bid Number 2002024C).

The Petitioner, Aqua - Terra, Inc. of Martin County, and others

responded to the ITB.

During the ranki ng of the bids, the Petitioner was

scored based upon references provided to the Department. The

Department contacted references who were asked to respond to

a series of questions. The Petitioner believes the

Department erroneously scored its references' responses to

the questions posed.

Accordingly, when it obtained written statements from

the two references, the Petitioner filed the instant bid

challenge to contest the score it was given. The bid protest

was timely filed on January 24, 2002. The case w as not

referred to the Division of Administrative Hearings until

March 20, 2002.

The case was promptly scheduled for hearing and all

parties consented to the hearing date. A Notice of Hearing

was issued on March 26, 2002. The Notice of Hearing provided

that subpoenas would be issued upon request of the parties.

Neither party requested subpoenas in this matter.

At the hearing, Carlton Oaks testified on behalf of the

Petitioner. The Petitioner was unable to get two references

to voluntarily appear to tes tify. Nevertheless, the

Petitioner attempted to move two reference letters into

evidence. The Department objected to the admissibility of

the evidence as hearsay. Such objection was sustained.

As a result of the ruling, the Petitioner elected to

withdraw the bid protest. Accordingly, this Recommended

Order of Dismissal is being entered as there are no disputed

issues of material fact to address.

RECOMMENDATION

Based on the foregoing, it is RECOMMENDED that the

Department enter a Final Order dismissing the bid protest

filed by the Petitioner regarding Bid Number 2002024C.

DONE AND ENTERED this 10th day of April, 2002, 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 (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 10th day of April, 2002.

COPIES FURNISHED:

Carlton E. Oaks, President

Aqua - Terra, Inc. of Martin County

Post Office Box 2104

Hobe Sound, Florida 33475 - 2104

Marshall G. Wiseheart, Es quire

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399 - 3900

Kathy C. Carter, Agency Clerk

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399 - 3000

Teri L. Donaldson, General Counsel

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399 - 3000

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exce ptions

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.