03-004001BID D. J. Haycook Construction Company vs. Volusia County School Board Status: Closed Recommended Order on Monday, March 8, 2004.

Summary: Petitioner showed method of evaluation of bids amounted to Respondent departing from specifications in an arbitrary way, which was erroneous as a matter of law and fact. Petitioner demonstrated that it was the lowest, best, and responsive bid.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

D. J. HAYCOOK CONSTRUCTION )

COMPANY, )

)

Petitioner, )

)

vs. ) Case No. 03 - 4001BID

)

VOLUSIA COUNTY SCHOOL BOARD, )

)

Respondent. )

)

)

RECOMMENDED O RDER

This cause came on for hearing pursuant to notice on

December 11 and 12, 2003, in Deland, Florida, before P. Michael

Ruff, duly - designated Administrated Law Judge. The appearances

were as follows:

APPEARANCES

For Petitioner: S. LaRue Willia ms, Esquire

Kinsey, Vincent, Pyle, L.C.

150 South Palmetto Avenue, Box A

Daytona Beach, Florida 32114

For Respondent: Theodore R. Doran, Esquire

Michael G. Dyer, Esquire

Doran, Wolfe, Rost & Ansay

444 Seabreeze Boulevard, S uite 800

Post Office Drawer 15110

Daytona Beach, Florida 32115

STATEMENT OF THE ISSUES

The issues to be resolved in this proceeding concern

whether the Petitioner, D. J. Haycook Construction Company

(Haycook) was the lowest responsive bidde r for an elementary

school procurement project known as Elementary School "X," let

by the Volusia County School Board and whether the Petitioner

should have been awarded the contract.

PRELIMINARY STATEMENT

This cause arose upon the issuance of "an adverti sement for

bid" by the Volusia County School Board (Board) seeking sealed

bids from contractors for the construction of a new elementary

school for Volusia County, Elementary School "X." The bids were

to be submitted on or before 2:00 p.m., August 6, 2003 , at which

time all bids would be publicly opened and read aloud. The

advertisement for bid was issued on July 16, 2003, and the Board

received eleven proposals in response to it. It opened and read

all bids for Elementary School "X" on August 6, 2003, a nd

determined that Haycook was the lowest bidder. Haycook's base

bid was in the amount of $7,599,000.00. The firm of Clancy and

Theys Construction Company, Inc. (Clancy and Theys) was the

third lowest bidder with a base bid of $7,840,000.00. The

second lowest bidder, Mark Construction Company, failed to

extend its bid bond after the bid opening and during the

pendency of this protest and therefore effectively withdrew its

bid and is no longer in contention.

The selected bidder would serve as a general c ontractor

responsible for the construction of the school with an

established project budget of $8,000,000.00. The bids were

opened and read on August 6, 2003, and after the bids were

opened the Board, through its project architect Philip Daimwood,

of Daim wood, Derryberry, Pavelchak Architects, P.A. (architect

or Daimwood), began an investigation of the low bidder, in

accordance with the Board's interpretation of the advertisement

and solicitation specifications wherein the Board reserved the

right to use s ufficient time to investigate the bids and

qualifications of the bidders. In this investigatory process

the Board, through its architect, solicited information from the

low bidder, Haycook, in order to ascertain that Haycook had the

capability, based in p art upon information from its earlier jobs

or projects, to self - perform work in four areas: earthwork,

structural steel, masonry, and concrete. A number of letter

exchanges and at least one meeting between representatives of

Haycook and the Board occurred in this regard.

Ultimately the Board took the position that Haycook's bid

was not responsive because of failure to comply with all

requirements of the solicitation advertisement and addenda. The

Board thus awarded the contract to the third lowest bidd er,

Clancy and Theys, on October 14, 2003. Haycook timely protested

the proposed award and the cause was forwarded to the Division

of Administrative Hearings and ultimately to the undersigned

administrative law judge. Upon waiver of the relevant time

per iod for setting of the hearing, the parties agreed to set the

hearing on December 11 and 12, 2003, and the hearing proceeded

as scheduled on those dates.

In its formal written protest Haycook questioned the school

Board's authority to verify Haycook's e xperience and capability

to, in effect, serve as its own subcontractor ("self -

performing") in the work areas of structural steel, concrete,

masonry, and earthwork. Haycook protested on grounds that the

school board failed to follow its own rules and the b id

documents in determining the lowest responsive bidder, and that

Section 120.57(3)(f), Florida Statutes, prohibits consideration

of submissions after the bid opening which amend or supplement a

bid or proposal. Haycook also maintains that the rejection of

its bid was grossly arbitrary and unfair by applying evaluation

criteria not set forth in the school board's rules or bid

documents, and that the Board improperly delved into Haycook's

means, methods, and procedures of self - performing its work,

misappli ed the definition of "self - performed," and that the

Board's inability to verify to its satisfaction prior self -

performed work by Haycook on other past projects is not a legal

criteria for rejection. Haycook maintains that the bid

documents do not define " self - performance," nor do they require

pre - qualified bidders to prove to the school board architect's

satisfaction that the bidder has self - performed work on similar

school projects in the past, by proving the use of only salaried

employees on Haycook's ow n payroll. Haycook takes issue with

the school board's definition of "self - performance" and contends

that its means, methods, and procedures for self - performing the

work were not prohibited by the bid documents or any rules or

regulations of the Board tha t relate to bidding of school board

projects.

The school board maintains that it could not verify that

Haycook had "self - performed" earthwork, structure steel,

concrete, and masonry on prior school projects and that, based

upon the Board's interpretatio n of self - performance, that

Haycook's self - performance on its earlier projects really

amounted to the use of "subcontractor" relationships and not

self - performance. Because it did not list subcontractors in

these four areas on the relevant bid document, a nd did not

establish to the Board's architect's satisfaction that it would

self - perform these areas of work with its own labor,

supervision, and material resources, that Haycook had been non -

responsive as to these four areas of work on its bid.

Haycook ca lled four witnesses to testify at the hearing:

Jack Dunlap, Reed Hadley, Harold Goodemote, and Dennis Haycook.

Mr. Goodemote was presented as an expert witness. The parties

agreed that Petitioner's Exhibits 1 through 9 and the

Respondent's Exhibits 1 th rough 28, some of which Haycook also

used for its own exhibits, would be jointly offered and received

into evidence. The Board called witnesses Patricia Drago,

Philip Daimwood, Carl Gerken, Scott Stegall, Allen Green, Gary

Parker, Steve Eckman, and Gary E hrlich as its witnesses.

Witnesses Stegall, Parker, Eckman, Green, Daimwood, and Gerken

were presented as expert witnesses on behalf of the school

Board.

Prior to the hearing the parties filed a Joint Pre - Hearing

Stipulation setting forth contested and u ncontested issues of

fact and law. The school board also filed a Memorandum of Law

prior to hearing. Upon conclusion of the hearing the parties

ordered a transcript thereof which was submitted along with the

parties' timely submitted Proposed Recommended Orders. The

Transcript, the Proposed Recommended Orders, and the notes of

the undersigned have been carefully read and considered in the

rendition of this Recommended Order.

FINDINGS OF FACT

1. On June 13, 2003, the School Board of Volusia County

autho rized the issuance of a request for proposal for the

construction of a new elementary school known as Elementary

School "X." The proposed new school would be located in Orange

City, Florida.

2. The school board issued an advertisement for the

constructi on of Elementary School "X" and had it published. The

project architect for the Board prepared the solicitation

documents constituting a "Phase III specifications" manual and

three addenda.

3. The advertisement stated that "the school board

expressly re serves the right to reject any and all bids and to

waive informalities therein, and to use sufficient time to

investigate the bids and the qualifications of the bidders."

4. Section 00430 of the solicitation required that all

bidders list the name of the subcontractor for each type of the

12 areas of construction work for Elementary School "X" as

follows:

'For each type of work' below, list the name

of the subcontractor. List only one name on

each line and only one subcontractor for

each type of work. V arious 'type of work'

sub - contracts may have more than one

subcontractor (re: roofing; metal roofing

and membrane roofing), list each

subcontractor accordingly. Use additional

sheets, if required.

Additionally, Section 00430 provided:

The term subcontrac tor as used herein shall

be defined in 2001, Florida Statute

713.01(27) - subcontractor means a person

other than a materialman or laborer who

enters into a contract with a contractor for

the performance of any part of such

contractor's contract.

The dead line for submission of proposals in response to the

solicitation was August 6, 2003. On August 6, 2003, Haycook's

bid proposal and that of the second and third lowest bidders

were opened and read by the members of the school board's staff.

Haycook listed itself as performing or "self - performing" in

areas of earthwork, masonry, concrete, and structural steel on

the required list of subcontractors form pursuant to section

00430 of the solicitation.

5. Subsequently, the project architect began to

investi gate the bids for the project. This was done through

correspondence and direct contact between Haycook, the project

architect, Mr. Daimwood, and the school board staff. This

process began on August 8, 2003. As part of the evaluation

process the architec t verbally requested documentation from

Haycook to verify its past and present abilities to self - perform

in the four areas of earthwork, concrete, masonry, and

structural steel, as well as by letters dated August 12, August

15, and August 25, 2003. Haycoo k responded to these information

requests by letters of August 11, 13, and 28, 2003.

6. The bid documents for the school project included the

bidding and contractual conditions, general conditions,

technical specifications, and the drawings listed on pag es 10D - 1

to 10D - 2. In order to have a responsive bid a bidder was

required to comply with the bid documents when submitting its

bid. The relevant bid documents at issue in this dispute are

Section 0020, "invitation to bid," Section 00100, "instruction

to bidders," Section 00300, "bid form," and Section 00430, "list

of subcontractors."

7. The bid documents also required each bidder to deliver

a bid bond in the amount of five percent of its bid to accompany

the proposal. After acceptance of the lowest re sponsive bid,

and issuance of the contract award, a bidder was required to

deliver a payment and performance bond in the amount of 100

percent of the contract price. There is no dispute that Haycook

has a bonding capacity of 18 million dollars for a singl e

project and 35 million dollars for aggregate projects and the

bonding capacity is not in dispute.

8. The invitation to bid documents require that bidders be

required to hold a current Certificate of Pre - Qualification

issued by the school board at the t ime of bid opening. Haycook

at all material times hereto held a Certificate of Pre -

Qualification and was licensed to perform all work called for by

the bid documents including, among others, self - performance of

earthwork, concrete work, masonry, and struc tural steel.

9. The three bids received were in the amounts as follows:

(1) D. J. Haycook Construction Company: a base bid of

$7,599,000.00; Alternate One, $189,000.00; Alternate Two,

$48,800.00; Alternate Three, $21,000.00; (2) Mark Construction

Comp any of Longwood, Florida: base bid of $7,657,000.00,

Alternate One, $221,000.00; Alternate Two, $50,000.00; Alternate

Three, $20,000.00; (3) Clancy and Theys Construction Company of

Orlando, Florida: base bid of $7,840,000.00; Alternate One,

$230,000.00; A lternate Two, $50,000.00; Alternate Three,

$21,000.00.

10. Section 00430 required each bidder to furnish a list

of subcontractors defined as quoted above in the bid form.

Section 00430 of the bid form also permitted a bidder to list

itself as a subcontr actor. The form provides: "A contractor may

not list himself as performing a type of work unless he is self -

performing and is a Florida licensed contractor for that type of

work". Haycook was properly licensed at the time of bidding,

and at all relevant times, to self - perform in the four areas of

earthwork, structural steel, masonry, and concrete at issue in

this case.

11. After the bids were opened and examined, Mr. Daimwood,

the architect evaluating bids for the school board, requested

that Haycook fu rnish a list of past projects where it had self -

performed earthwork, structural steel, masonry, and concrete

work. Haycook provided a list of examples of prior projects for

which it had self - performed work in those areas on August 11,

2003. The list incl uded five projects for earthwork, four

projects for structural steel, seven projects for masonry, and

seven projects for concrete. Thereafter, on August 12, 2003,

the architect requested additional information regarding self -

performance of work in the fou r areas at issue.

12. Haycook provided the architect with the requested

additional information on August 13, 2003, including a list of

each project, the total cost of each project, the completion

dates, as well as contact persons with their telephone num bers

and including copies of qualifications of the subcontractors

listed on Haycook's subcontractor list.

13. On August 25, 2003, the architect requested Haycook

payroll records and workers compensation information for two of

the listed projects of tho se Haycook had provided, that for

Goldsboro Elementary School and Eustis Elementary School.

14. On August 28, 2003, Haycook sent a letter to the

architect explaining that on the Goldsboro job the earthwork was

self - performed by a combination of supervisi ng and directing the

work with salaried employees, with leasing of labor from an

employment service, and hiring of labor by the cubic yard with a

cap on the activity. Haycook also explained that structural

steel work on the projects was self - performed by a combination

of supervising and directing the work with salaried employees,

leasing of labor from an employment service, hiring of labor

paid by the foot to erect specific components of the job, as

well as using salaried employees for the performance of s pecific

activities, and including purchasing of fabricated materials and

then hiring crew labor and equipment on an hourly basis to erect

them.

15. In the August 28, 2003, letter Haycook also explained,

with respect to the self - performed masonry work o n both the

Eustis and Goldsboro jobs, that those areas of work were self -

performed by purchasing fabricated material, supervising and

directing the work with salaried employees, hiring labor by the

unit price (for instance by the block) to lay the block, a nd

hiring labor from an employee leasing service for specific

activities as to those jobs.

16. Haycook also explained in the August 28, 2003, letter

that a combination of the methods and means of performing

delineated above and in that letter would be us ed for the

activities listed on the subcontractor list on the relevant bid

form for Elementary School "X". Haycook explained that it had

priced and used its own costs for the activities listed on the

bid form to arrive at the bid price for Elementary Scho ol "X".

17. Enclosed with the August 28, 2003, letter from Haycook

were copies of its purchase orders and cost journals for the

Goldsboro School, concerning earthwork, masonry, and structural

steel activities and its vendor purchase orders and cost

journ als for the Eustis Elementary School's masonry work done by

Haycook. The enclosures with the August 28, 2003, letter showed

that Haycook had purchased the materials, performed the work

with its own employees, and performed work using additional

outside la bor in the areas of structural metals, prefabricated

structures, earthwork, cast - in - place concrete, structural steel

erection, and masonry work. Haycook also provided its proposals

used on the Goldsboro project which consisted of concrete labor

and struct ural steel labor.

18. The architect interpreted the term "self - performance"

to mean labor with the contractor's own employees only. Based

upon that restrictive interpretation, he concluded that he had

not found adequate information demonstrating Hayco ok's having

"self - performed" these types of work previously. Additionally,

the architect opined that Haycook's intended self - performance on

Elementary School "X" project at issue, in the four work areas

in dispute, "is in our opinion, a subcontractor form at."

19. Uncontroverted evidence adduced at hearing established

that Haycook has extensive public school construction

experience. The Petitioner's President, Dennis Haycook, has

built more than 35 public schools and Haycook's project manager,

Reed Hadl ey, who is assigned to the Elementary School "X"

project, has built over 25 school projects. Dennis Haycook was

also a principal of Mark Arnold Construction Company in the

past, which was one of the largest public school contractors in

Florida. In the pa st 10 years, with his own company, the

Petitioner, Haycook, has built numerous school projects

including the Goldsboro school which was a $7,000,000.00

project. The Goldsboro, Eustis, and other Haycook - built schools

referenced during the hearing and in th e evidence were all

projects that were built within the authorized budget, were

timely, and were of quality construction.

20. The Board ultimately rejected Haycook's bid on

Elementary School "X" because of the architect's interpretation

concerning "self - performance," i.e. that all work must be

performed by employees on Haycook's payroll. The bid documents

did not define "self - performance," nor do the bid documents

require that labor used must be on the contractor's payroll in

order for his performance to constitute "self - performance."

21. Haycook's witnesses were consistent in their testimony

as to the definition of "self - performance": "self - performance,"

as customarily used in the construction industry, includes the

contractor's purchasing of materials , performing part of the

work with its own labor force, providing other labor not on the

contractor's payroll, and directly supervising the work with the

contractor's supervisory personnel. The term "subcontractor" is

defined in the custom and usage of th e construction industry,

however, to mean someone or an entity that provides all labor,

material, and equipment necessary to do the complete operation,

as well as all supervision. It is more of a "total turn key

operation." A subcontractor provides every thing necessary to

finish the work, including supervision, and then merely answers

to the general contractor in terms of responsibility for the

quality of the job and its timeliness.

22. The school board's witnesses, expert and otherwise,

gave interpre tations of the concept of self - performance which

were somewhat conflicting. Mr. Daimwood, the architect, opined

that self - performance requires the contractors to use employees

on its own payroll and make direct payment of workers'

compensation for such em ployees. His opinion was that anything

else would be a subcontractor relationship and not self -

performance. He later testified, however, that paying labor not

actually on Haycook's payroll could still constitute self -

performance. Patricia Drago, of the school board staff,

testified that if a contractor uses 10 employees on his payroll

and uses 10 non - employees, this would be self - performance. If

such a contractor has 10 employees and uses 11 non - employees,

she was not sure whether this would constitute self - performance.

Allen Green testified that self - performance of an area of work

requires the majority of that work to be performed by the

contractor's own employees, while other work could be performed

by contract labor. He later changed his definition to require a

contractor to have all employees on the payroll in order to

self - perform. In other testimony, however, Mr. Green opined

that if a contractor supplemented his labor with a couple of

additional masons and paid them by the piece, then he would n o

longer be self - performing. At still another point in his

testimony he added that it would be dependent upon the stage of

the project as to whether the contractor's use of contract labor

is self - performing or subcontracting. He felt that if the

contract or adds some additional masons near the end of a job, as

opposed to the beginning, then he could still be self -

performing.

23. Gary Parker is the Director of Facilities for the Lake

County School Board. He testified that from his perspective,

self - perf ormance required the use of employees on the

contractor's payroll. This definition, however, was not

consistent with Lake County's course of conduct with the job

that Haycook performed. Mr. Parker acknowledged that there had

been no complaints by the arc hitect or anyone else associated

with the Eustis school project where Haycook listed itself as

self - performing for masonry work, even though Haycook had

retained a different entity to perform masonry labor (although

not supply materials or supervision).

24. Scott Stegall, the Director of Capital Outlay for the

Seminole County School Board, testified that self - performance

would require a contractor to perform all work without the use

of outside contractors, including labor. Yet Mr. Stegall

acknowledged t hat Haycook listed itself as self - performing

masonry work on the Goldsboro school project and used a firm or

entity known as Webber and Tucker to perform some masonry work,

and that the Seminole County School Board had no dispute with

this approach. Mr. S tegall's evaluation form for Haycook had

stated that Haycook did not improperly substitute any

subcontractors from the submitted list in that project. He

later changed his definition of self - performance to acknowledge

that a contractor could bring in labo rers individually to

perform without a "formal contract"; these informal labor

contracts would not take it out of the self - performance category

according to Mr. Stegall.

25. The evidence concerning the Lake County District's and

Seminole County District 's experience as to the Eustis school

project and the Goldsboro school project with Haycook's

performance, including Haycook's approach to self - performance,

was satisfactory in terms of pricing and the quality and

timeliness of the work performed. The per ceived fear by the

Respondent that Haycook's performance might be substandard or

that it might "bid shop" amongst potential subcontractors, after

the bid opening, if Haycook did not list all subcontractors on

the bid response, and self - performed in the man ner Haycook

described in its evidence, has not been shown to have occurred

with regard to any of Haycook's past projects. There has been

no demonstration by preponderant evidence that the use of only

subcontractors listed or named in the bid response has resulted,

in itself, in a lower price or better performance for the public

by a contractor situated as Haycook.

26. The architect testified that one method of defining

"self - performance" is to determine whether the entity performing

work was a subcont ractor as defined by the bid documents. If

the work is not being performed by a subcontractor, then it is

being performed by the general contractor or self - performance.

As the term is used in the construction industry, a

subcontractor generally furnishes materials, installs the work,

and supervises its own work.

27. The bid documents define subcontractor as follows:

"subcontractor means a person other than a materialman or

laborer who enters into a contract with a contractor for the

performance of any p art of such contractor's contract."

28. Preponderant, credible, and substantial evidence was

presented by Haycook to show that Haycook's use of the term

"subcontractor" was an entity that furnishes the materials,

provides the labor, and the supervision, and undertakes the

entire responsibility for that type or phase of the work. When

a general contractor hires contract labor only, this excludes

what is occurring from the definition of subcontractor, since

the definition of subcontractor prevailing in thi s proceeding

based upon the bid documents, takes out of that subcontractor

definition "a materialman or laborer." The preponderant

credible evidence shows that when Haycook purchases materials

and provides the labor, whether or not the labor is on Haycook 's

payroll, which Haycook then directly supervises , this, by

definition, is not a subcontractor situation under the

definition of that concept in the bid documents themselves.

29. The bid documents provide no definition for self -

performance, but simply c ontain the following requirements: "a

contractor may not list himself as performing a type of work

unless he is self - performing and is a Florida licensed

contractor for that type of work." Therefore, if a contractor

meets these two requirements, he is res ponsive to this

specification concerning when subcontractors should be listed or

need not be listed in the bid response.

30. Haycook meets both of the two requirements for self -

performing. Haycook's definition of self - performing work is

consistent with and does not conflict with the definition of

"subcontractor," which excludes materialmen and laborers.

31. Haycook's expert witness, Mr. Harold Goodemote, is a

general contractor with 20 years experience, including 8 years

as a project engineer and chief estimator for Foley and

Associates Construction Company for many public school projects

in the Orlando, Melbourne, and Daytona Beach area.

Mr. Goodemote is also Vice - President of "Coleman - Goodemote"

which has been in existence for approximately 10 years and has

built projects worth multi - millions of dollars for Daytona

Speedway related entities.

32. It was established through Mr. Goodemote's testimony

that it is customary in the construction industry to self -

perform work by the contractor's purchasing o f materials and

using the contractor's own employees, along with "third party

labor," to complete work under the direct supervision and

control of the general contractor. The testimony of Mr. Reed

Hadley and Mr. Haycook likewise establishes that it is com mon

practice in the construction industry to self - perform work in

the manner in which Haycook has performed it in the past. For

example, both the Lake County and Seminole County School Boards

allowed Haycook to list itself as self - performing where Haycook

purchased masonry materials and used contract labor to install

the masonry materials and components.

33. "Bid shopping" is a practice whereby a contractor

submits a bid for a project and, after winning the bid, goes to

its subcontractors or even to new subcontractors, not considered

in the bid process, and attempts to get lower prices from them,

versus the prices the contractor had when it submitted its bid.

This allows more profit to be built into the job for the

contractor or, if the contractor artifi cially bid low in order

to get the job, tends to allow the contractor to restore profit

to the job for itself. The school board's rationale for

requiring pre - bid opening listing of subcontractors is to

prevent bid shopping after the bid is awarded in orde r to

protect the competitive integrity of the bidding process. The

listing of subcontractors is a practice of the Volusia County

School Board and some other school boards in Florida.

34. Ms. Drago, in her testimony, acknowledged that a

substantial num ber of school boards in Florida do not require a

list of subcontractors to be provided with bid proposals, and

she acknowledged that this does not mean that those school

boards' bid processes lack credibility and competitive

integrity. She was unaware of any examples in the Volusia

County School Board's experience where a contractor listed

itself as self - performing and then shopped subcontractors after

the bid opening to obtain a better price.

35. The preponderant evidence of record does not establish

t hat this has been the case with Haycook or other contractors on

past Volusia County School Board jobs. This is in accord with

Mr. Haycook's testimony, who described the detrimental effects

such a practice could have on future relationships between a

contr actors and subcontractors in terms of having them available

for later jobs, if a contactor became known for "beating down"

subcontractors' prices. If a contractor had a reputation for

engaging in that practice, in the future subcontractors' bids to

that g eneral contractor would likely be higher, if he could get

their bids, and this might result in that contractor having

difficulty rendering bid proposals that were low enough to have

a chance of being successful.

36. The bid documents give the school boar d the right to

determine if each subcontractor listed by the bidders is

qualified to perform the work and if not, to reject that

subcontractor and require a replacement subcontractor. It is

noteworthy that neither the architect nor the school board

reject ed Haycook as being unqualified to perform the work in any

of the areas in which Haycook, in effect, listed itself as the

subcontractor.

37. The bid documents do not provide that the school board

may reject "sub - subcontractors" engaged by a subcontract or, nor

does the school board examine the history and capabilities of

sub - subcontractors that a subcontractor intends to use. Once a

subcontractor is acceptable to the Board, there is no further

review to determine what means, methods, and procedures the

subcontractor uses to perform the work. The subcontractor can

contract out all of the work to sub - subcontractors who are

actually performing the work, and the Board might not even be

aware of it. Therefore, its method or rationale of listing

subcontracto rs and then investigating the subcontractors is no

guarantee of ensuring quality of work. In fact, the more areas

of work that the general contractor does itself, the more direct

control over performance the school board would have.

38. The school board apparently uses a different approach

in the instance where a general contractor lists itself as a

subcontractor for one or more types of work, i.e. is self -

performing. The Board's practice in that situation requires the

general contractor to list each co ntractor who may perform parts

of the work. Therefore, the general contractor must list each

contractor who will perform the work in each area while this

standard is not applied to listed subcontractors.

39. The bid documents do not disclose to bidders the

school board's unwritten definition and interpretation of "self -

performance." They do not reveal that under the Board's

interpretation a contractor must self - perform only with

employees on its payroll; that a pre - qualified contractor

licensed to perf orm work in a given area must prove that it has

self - performed such work in the past with its own employees

only; that general contractors will be treated differently from

subcontractors on the subcontractors list, as to the listing of

contract labor, and that even though the term "subcontractor" in

the bid documents excludes "materialmen" and "laborers," the

school board still considers contract labor as a subcontractor

or subcontracting, that must be listed for self - performance

work.

40. Haycook has sub stantial experience in bidding and

performing work on public school projects, as does Mr. Haycook

himself, with both Haycook and a prior company with which he was

associated. Haycook had prepared a bid three or four months

earlier on a prototype school pr oject similar to Elementary

School "X" and had extensive cost information obtained from its

work on that project and from subcontractors, including those

"bidding" Elementary School "X." Haycook maintains a large

database of subcontractors and suppliers e xperienced in

performing work and portions of the work necessary for the

Elementary School "X" project, including cost information. It

has a database of over 3,000 names useful in obtaining and

providing labor for use on parts and subparts of any self -

per formed work. Prior to the bid, Haycook received the plans

and specifications enabling it to determine the quantities of

materials needed and the costs per unit for installing the

materials and performing the necessary work.

41. Haycook had received subc ontractor bids in each of the

four areas that it later determined it would self - perform

(earthwork, structural steel, concrete, and masonry). Because

Haycook's "takeoffs," historical pricing information and recent

bid information from another Volusia Coun ty prototype school

indicated that it could self - perform the work at less cost than

using the bids of subcontractors in those four work areas,

Haycook elected to self - perform the work and listed itself as

the subcontractor in those four work areas. This w as not a case

where Haycook simply ran out of time to get subcontractors' bids

in those four work areas and therefore simply listed itself as

performing in the four work areas at issue due to time

expediency. It was also not because Haycook intended listi ng

itself as performing in the four subject work areas so that it

would create an opportunity to get lower bids from unknown

subcontractors after bid opening, in order to enhance its

profitability and support a low bid, in terms of putting enough

money in the job for itself.

42. As general contractor for the entire project, Haycook

intended to provide general supervision of the entire project

including subcontractors. With respect to self - performed work,

Haycook intended to supply materials and component s and to

directly supervise and control the means, methods, and

procedures of the self - performed work with contract labor.

43. Haycook's definition of "self - performance" for

earthwork involved Haycook's renting equipment, retaining

contract laborers to c lear the site, place the fill (paid by the

hour or by the yard), compact the fill, and grade the site.

Haycook directly supervises self - performed work and schedules

and manages it with Haycook's project manager and on - site

superintendent.

44. The testim ony of Reed Hadley and Dennis Haycook on

behalf of Haycook established that Haycook had self - performed

earthwork on other projects in the same manner as described

above, satisfactorily for the owners. Specific project names

and other project information s howing earthwork self - performance

by Haycook was provided to the architect as referenced above.

Mr. Haycook established that Haycook had "self - performed"

earthwork on 50 to 60 percent of its projects in the past.

45. Haycook's definition of self - perform ance of structural

steel included engaging a licensed fabricator, as required by

the bid specifications in this instance, hiring experienced

labor erection crews, purchasing the materials and component

parts, and directly supervising and managing the work, including

scheduling of the labor crews. Haycook had performed structural

steel on 10 to 15 percent of its past projects. Four examples

of projects, self - performed in structural steel, were provided

to the architect along with related detailed informati on.

46. Haycook's self - performance of concrete work included

its purchasing of materials, hiring contract labor for footings,

paid by the lineal foot, and concrete slabs paid by the square

foot, and directly supervising, coordinating, and scheduling the

concrete work activities with Haycook's own project managers and

superintendent. Haycook has self - performed concrete work on

approximately 80 percent of its past projects. The architect

was provided a project listing of self - performed concrete work

and d etailed information showing Haycook's experience in this

area. Concrete work is the area of work most commonly self -

performed by general contractors in the construction market area

in and around Volusia County.

47. Haycook's self - performance of masonr y includes

Haycook's purchasing of concrete blocks, and reinforcing steel

placed within the block, hiring labor on a unit price basis to

install it (as, for instance, paid by the block laid), directly

supervising the work, and coordinating and scheduling t he

masonry work activities with Haycook's project manager and

superintendent. Haycook has self - performed masonry on

approximately 70 percent of its past projects. The architect

was provided examples of projects listing self - performed masonry

work by Hayc ook, as well as detailed information depicting

Haycook's experience in this work area.

48. Mr. Goodemote, as referenced above, is a local general

contractor with school board project experience and is Haycook's

expert witness. He established that it is common practice in

the construction industry in the Volusia County area for

contractors to self - perform work in the manner that Haycook had

self - performed it in the past and proposes to do on Elementary

School "X." He established with reference to the Boa rd's

definition of "subcontractor," which excludes "materialmen" and

"laborers," that a contractor's purchase of materials and the

hiring of contract labor to install the materials does not come

within the definition of "subcontractor" or "subcontracting."

He established that a subcontractor is the one who provides all

labor, material, equipment, and supervision necessary to

complete a work operation. "It's a total turnkey operation.

They provide everything to finish the work." Mr. Goodemote's

opinion e stablishes that "self - performance" of the subject work

includes a general contractor hiring contract labor to perform a

part of the work, because many times there are multiple vendors

associated with a portion of the work, and the contractor is

still direc ting and supervising the work and assuming all the

risks associated with the work. Mr. Goodemote himself has self -

performed as a general contractor and observed other contractors

self - perform earthwork, masonry, concrete work, and structural

steel work. He demonstrated that if a general contractor uses

contract labor to perform a portion of the work, it still

remains a "self - performance" by the general contractor, and that

the laborers do not have to be on the contractor's payroll in

order for the work to constitute self - performance, according to

the general practice and usage in the construction industry.

49. When requested by the architect to provide examples of

past projects that it had self - performed in the four subject

work areas, Haycook listed fiv e projects as to earthwork; four

projects in structural steel; seven projects as to masonry; and

seven projects as to concrete. In consideration of his

restrictive view of what self - performance means (i.e. that self -

performance can only mean performance o f work by salaried

employees on the general contractor's own payroll), the

architect (evaluator) requested payroll records and workers'

compensation information on two projects only, the Goldsboro

Elementary School and Eustis Elementary School.

50. The b id documents do not provide unbridled discretion

in the architect/evaluator, or in the school board, to define

self - performance in a manner not provided for or inconsistent

with the bid documents or to define "subcontractor," to include

contract labor and thus require the labor to be listed as a

subcontractor on the bid response. There was no notice to any

of the bidders that such a restrictive definition would be

employed, nor that a contractor listing itself as self -

performing, and therefore standing in same position as other

subcontractors as to the areas of work it would self - perform,

would be treated differently from other subcontractors by, in

effect, having to list such persons or entities as those

providing contract labor as "sub - subcontractors." T here was no

evidence that the architect was provided sole discretion to

verify self - performance experience as to the two projects only

and ignore verification information of self - performance as to

the other listed projects provided by Haycook.

51. Althou gh the architect and the Board contended that

Haycook's listing of itself as self - performing in the four work

areas at issue might allow Haycook to "buy out" subcontractors

or to "bid shop," there was no evidence offered to substantiate

that this was Hayco ok's intent or that Haycook or any other

identified contractor in Volusia County or the surrounding area

had ever attempted to "buy out" subcontractors on Volusia County

school projects. Contrarily, Mr. Haycook testified that he does

not engage in a pract ice of "buying out" subcontractors after he

has obtained contracts with a winning bid. He explained, as

referenced above, that subcontractors and the business

relationships that he has with them are crucial to the success

of his business. If Haycook made a practice of engaging in such

inappropriate operational and pricing conduct when bidding for

projects, or entering into related contracts, then

subcontractors would either elect not give bids to Haycook at

all when Haycook was, in the future, attempting to formulate bid

responses, or would not give Haycook their lowest or best price

because of their knowledge of such a practice, if Haycook

engaged in it. This would obviously have an adverse effect on

Haycook's ability in the future to be successful in co mpetitive

bid procurements or projects.

52. Haycook has self - performed in the manner intended as

to Elementary School "X" for years, as have his competitors.

Although the Board apparently feared that Haycook's listing

itself as self - performing in the areas of work in question gave

it a competitive advantage over other bidders, the evidence does

not bear out that fear. The competing bidders had the same

opportunity to look at their past cost knowledge and experience,

their knowledge of materialmen and suppliers in the area, their

knowledge of the labor market and available labor and other data

by which they might arrive at an independent evaluation of what

a particular area of the work should cost, as well as the

methods and means necessary to perform i t. They had the same

opportunity to evaluate any such knowledge base they have and

elect to self - perform one or more areas of the work, as did

Haycook. Since they had the same opportunity to do so, the

evidence does not show there is any competitive adva ntage gained

by Haycook in this situation which was not available to other

bidders as well.

53. As addressed above, the architect's recommendation to

reject the Haycook bid was based upon his interpretation that

"self - performance" required all work to be accomplished by

employees on Haycook's payroll. Using that restrictive

definition, the architect concluded that Haycook did not

demonstrate, as to the Goldsboro and Eustis projects only, that

Haycook had self - performed work with its own employees in the

past and therefore that Haycook would self - perform with its own

employees on the project at issue. The architect concluded that

Haycook's subsequent engagement of contract labor in lieu of

using his own payroll employees "could potentially give D. J.

Hayc ook Construction Company an unfair advantage over the other

bidders." Neither the architect's testimony nor the Board's

other evidence explained, however, how that would give the

Petitioner an unfair advantage over other bidders who, as found

above, were free to engage in the same proposed self - performance

as Haycook. The evidence did not establish how it would harm

the public's strong interest in getting the best possible price

for a quality construction effort that was completed on time,

within the auth orized budget, and in accordance with all the

contractual terms. The architect's and Board's conclusion in

this regard is based upon incorrect and unreasonable

interpretations of what is meant by "subcontractor" and the

concept of "self - performance." The rationale for finding that

Haycook's putative self - performance would give Haycook an unfair

advantage, vis a vis, other bidders or would promote bid

shopping or buy - out of subcontractors has been shown by the

evidence to be based upon speculation and conj ecture.

54. Haycook's bid response has been shown to be responsive

to the specifications as they were stated, published and

furnished to the bidders, including Haycook, in the bid

documents at issue. The definition of self - performance employed

by the a rchitect and the Board is not supported by the language

of the bid documents and has been shown by the preponderant,

most credible evidence of record to be an unreasonable

definition and manner of evaluating the bids and particularly

Haycook's bid. Haycoo k has been shown to be responsive to the

specifications and the relevant portions of the bidding

documents and to have the lowest bid by a significant amount,

some $241,000.00 dollars as to the base bids of Haycook versus

that of Clancy and Theys.

CONCLUSI ONS OF LAW

55. The Division of Administrative Hearings has

jurisdiction of the subject matter of and the parties to this

proceeding. §§ 120.569, 120.57(1), Fla. Stat. (2003).

56. Section 120.57(3)(f), Florida Statutes, provides

pertinently as follows:

. . . 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, proposals, or

replies, the administrative law judge shall

conduct a de novo proceeding to determine

whether the agency proposed action is

contrary to the agency's governing statutes,

the agency's rules or policies, or the

solicitation specifications. The standard

of proof for such proceeding shall be

whet her the proposed agency action was

clearly erroneous, contrary to competition,

arbitrary, or capricious. . . .

Thus the Petitioner protestant must sustain its burden of proof

by preponderant evidence. Department of Transportation v.

J.W.C. Company, Inc. , 396 So. 2d 778, 787 (Fla. 1st DCA 1981);

State Contracting and Engineering Corp. v. Department of

Transportation , 709 So. 2d 607, 609, (Fla. 1998).

57. The Petitioner must thus demonstrate that the agency's

proposed action is contrary to governing stat utes, the agency's

rules or polices, or the bid or proposal specifications. Put

another way, it must be determined whether the agency was in

error in applying a governing principle, as for instance, its

interpretation or application of bid specifications. In making

a determination on the above issue objective facts, historical

or present reality must be found. Objective facts are those

which would depict, for example, how a bidder has operated in

the past with regard to past projects and how it proposes to

operate and perform with regard to the specifications its bid

and the construction at issue. The determination of such

objective facts, which lead to a determination of whether the

bidder has complied with the relevant specifications, and, if

not, whet her its deviation is material or non - material, involves

a weighing of probative testimony and other evidence which is

conflicting to some degree and maybe hotly contested. This

factual determination is the province of the Administrative Law

Judge; to weig h and make determinations concerning the candor,

credibility, and creditability of the testimony and documentary

evidence, the relative competency of the witnesses, in terms of

their experience with the subject matter at issue, their

relative opportunity t o observe as to contested factual matters,

the internal logical consistency of their testimony and its

relative level of consistency with that of other witnesses as to

contested factual matters. Judgments must thus be made as to

credibility and the relati ve weight to be ascribed to the

testimony and evidence offered by each party as to the contested

factual matters. Such objective facts are thus susceptible to

proof by ordinary and conventional methods.

Because a bid protest is fundamentally a de

novo proceeding, it is concluded that the

agency is entitled to no deference in

connection with the resolution of disputes

involving objective facts. It is

exclusively the judge's job, as the trier of

fact, to ascertain from the competent

substantial evidence in the record what

actually happened in the past or what

reality presently exits, as if no decision

previously had been made.

See R.N. Expertise Inc., v. Miami - Dade County School Board and

Preventive Medical Testing Center, Inc., d/b/a Global MRO,

Inter venor , 2002 WL 185217 (Florida Division of Administrative

Hearings Case No. 01 - 2663BID, 2002).

58. The purpose of competitive bidding is to secure the

lowest responsible offer. Minor irregularities in bids, vis a

vis, specifications can be waived, ef fectuating that purpose.

See Air Support Services International Inc., v. Metropolitan

Dade County , 614 So. 2d 583, 584 (Fla. 3rd DCA 1993); Tropabest

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

Services , 493 So. 2d 50, 52 (Fla. 1st DCA 1986). Although a bid

containing a material variance from the specifications is not

acceptable, Glatstein v. City of Miami , 399 So. 2d 1005 (Fla.

3rd DCA 1981), rev. denied , 407 So. 2d 1102 (Fla. 1981), not

every deviation from the invitation is material.

59. The court in Robinson Electrical, Inc., v. Dade

County , infra ., stated:

In determining whether a specific non -

compliance constitutes a substantial and

hence a non - waivable irregularity, the

courts' have applied two criteria - first,

whether the effect of a waiver would be to

deprive the municipality of its assurance

that the contract will be entered into,

performed and guaranteed according to its

specified requirements, and second, whether

it is of such a nature that its waiver would

adversely affect compet itive bidding by

placing a bidder in a position of advantage

over other bidders or by otherwise

undermining the necessary common standard of

competition.

In application of the general principles

above discussed, sometimes it is said that a

bid may be re jected or disregarded if there

is a material variance between the bid and

the advertisement. A minor variance,

however, will not invalidate the bid. In

this context a variance is material if it

gives the bidder a substantial advantage

over the other bidd ers, and thereby

restricts or stifles competition.

See Robinson Electrical Company v. Dade County , 417 So. 2d 1032

(Fla. 3rd DCA 1982).

60. In the case at hand the Respondent Board, in essence,

contends that the Petitioner's bid was not responsive t o the

specification. Although the specification at issue permits the

bidder, Haycook, to list itself as self - performing in lieu of

listing subcontractors for the areas of work in question, which

Haycook did, the Respondent contends that Haycook did not

es tablish to the satisfaction of the architect/evaluator and the

Board that it had self - performed on past projects or would do so

on this one, Elementary School "X." Therefore, the Board

believes that the Petitioner will actually use subcontractors

whose bi ds will be obtained after bid opening, supportive of its

lower bid price and thereby to obtain a competitive advantage

over other bidders; contending, in essence, that its claiming of

self - performance is a subterfuge.

61. The architect/evaluator interp reted the self -

performance concept to mean that the bidder should do so only

with its own resources, meaning employees on its own payroll,

largely using as a measure whether Haycook had paid workers'

compensation coverage for those employees. The evaluato r

focused on only two past projects, the Goldsboro School job and

the Eustis Elementary School job out of all the information

purportedly probative of past self - performance furnished him by

Haycook in the information gathering - bid evaluations process, in

d eciding that Haycook did not have a record of self - performance.

Notably, however, the Board's witness concerning the Eustis

School project, Gary Parker, who is employed by the Lake County

School District, was not employed by the Lake County District

durin g that project and had no role in its development or

oversight. He testified that he had seen an entry in the

minutes of a meeting concerning that project in which the

architect had referenced Haycook's "masonry subcontractor." His

overall testimony on d irect and cross - examination shows,

however, that he had no direct personal knowledge of that

masonry work arrangement, the context in which the note was made

by the architect (who did not testify), and Parker could not

state definitively whether a masonry subcontractor relationship

existed with Haycook on that project or not.

62. In any event, the preponderant weight of the credible,

most logical testimony and evidence shows, as found above, that

self - performance can include the use of contract labor, as was

done in part on those jobs. Moreover, there is no clear reason

or rationale for the architect/evaluator to essentially only

consider two of the Petitioner's past projects in arriving at

his conclusion that the Petitioner had not self - performed in the

past; extrapolating from that determination the decision that

Haycook would not really self - perform as to the subject project

and that therefore his bid in this regard was not responsive,

responsible, or bona fide, and instead was a subterfuge for

post - tab ulation "bid shopping."

63. The architect/evaluator's decision (and therefore the

Board's) was based on his view that self - performance can only be

done with the contractor's own employees, salaried on its own

payroll, and for whom the contractor is payin g workers'

compensation coverage costs. That narrow interpretation is not

based upon or supported by statute, rule, or any persuasive

decisional law of which the undersigned has been made aware.

Moreover, it represents a departure from the bid specificat ion,

which does not contain it and does not even define self -

performance. Thus that interpretation of the term, as carried

out herein in determining that Haycook, in the Board's view, is

unresponsive and not a responsible bidder, in effect, given the

prep onderant evidence culminating in the above germane Findings

of Fact, does not accord with facts, logic, and reason and is

therefore arbitrary. See Agrico Chemical Company v. Department

of Environmental Regulation , 356 So. 2d 759, 763 (Fla. 1st DCA

1978).

64. This is especially so given the preponderant evidence,

supportive of the above related Findings of Fact, which shows

that, even if Haycook had not self - performed on past projects,

it is thoroughly capable from an operational, staff,

experiential, an d financial standpoint to do so on the present

project. There is no preponderant, persuasive evidence to show

that Haycook intends to do otherwise. The testimony as to the

Board's fear that anti - competitive activity such as bid shopping

or "buyout" of su bcontractors will occur does not rise above

speculation and conjecture.

65. Moreover, the Board has a policy and practice, and is

authorized by the terms of the bid documents, to investigate

subcontractors listed by bidders to determine if they are

reput able and will likely do quality work. The Board can

require substitution of a subcontractor it believes is not

reliable. Once the inquiry is over, the Board does not look

further at how the subcontractor performs, leaving that to the

supervision of the g eneral contractor. The subcontractor is

free to "sub - subcontract" out parts of its work, as is commonly

done, without objection or inquiry under the Board's practice.

The general contractor, however, when listing itself, in effect,

as a subcontractor on its bid, because, as here, it is self -

performing, would be precluded from "sub - subbing" out part of

the work to a sub - subcontractor. This is because of the Board's

interpretation of the concept of self - performance to mean that

it can only be done by salar ied employees actually on the

general contractor's payroll. The Board does not require that

stricture of others who are in the posture of subcontractors and

are not the general contractor. Thus, in effect, the Board

would require the listing as a subcont ractor of each entity

providing any portion of the work to the general contractor who

is not such a salaried employee of the general contractor, while

not applying this standard to listed subcontractors. This

unequal application of the Board's interpretat ion of self -

performance is, in itself, also not supported by the terms of

the specification nor the above found facts. It is illogical

under the circumstances and therefore arbitrary.

66. The preponderant, credible testimony and evidence

shows that se lf - performance by a contractor may be accomplished

by the purchase of materials and employing, directing, and

supervising labor in performing the work. Self - performance does

not mean that a bidder or contractor must only perform with

persons or employees on its own payroll, so long as the bidder

controls the means of performance, as well as the results. This

is the manner of self - performance proposed by Haycook. It would

still supervise and direct even contract labor (not employing

supervision by some in tervening subcontractor).

67. Employees can be such without actually being on the

contractor's salaried payroll. Webster's Dictionary defines

"employee" as a person who works for another in exchange for

financial compensation. Thus compensation can be accomplished

by paying by the hour, by the lineal foot, the square foot, or

by the piece. Black's Law Dictionary defines employee as:

A person in the service of another under any

contract for hire, express or implied, oral

or written, where the employe r has the power

or right to control or direct the employee

in the material details of how the work is

to be performed. . . .

Generally, when a person for whom services

are performed has the right to control and

direct individual who performs services not

only as to result to be accomplished by work

but also as to details and means by which

result is accomplished, individual subject

to direction is an 'employee.'

68. In summary, the Petitioner was shown by the

preponderant evidence and above found facts to have complied

with the bid specifications which allow it to propose self -

performance of the work areas in question. The facts found show

that it intends to and will self - perform in a manner responsive

to the bid specification and that its operational capability,

experience, and past record of performing similar projects with

quality work, within budget and on time, will conform to the

Board's and public's interest in having such performance at the

lowest possible price. It has thus established its bid to be

responsive.

69. Even assuming, arguendo , that Haycook was less than

fully responsive to the specification, in terms of how it

proposed to self - perform, the preponderant, direct, and

circumstantial evidence and the above facts do not show any

de viation to be material. The courts do not favor the

disqualification of a low bidder for non - responsiveness where a

bid irregularity does not impart an unfair competitive advantage

to the low bidder. In the case of Intercontinental Properties

v. DHRS , 60 6 So. 2d 380 (Fla. 3rd DCA 1992) the court, in

reversing a hearing officer's finding of unresponsiveness on the

part of a bidder, discussed at length the well - known case of

Liberty County v. Baxter's Asphalt and Concrete Inc. , 421 So. 2d

505 (Fla. 1982) co ncerning principles applicable to competitive

bidding. The Intercontinental court enunciated the principle

from the Baxter's opinion that:

A minor irregularity is a variation from the

bid invitation or proposal terms and

conditions which does not affect t he price

of the bid, or give the bidder an advantage

or benefit not enjoyed by other bidders, or

does not adversely impact the interest of

the department. . . .

There is a very strong public interest in

favor of saving tax dollars in awarding

public contr acts. There is no public

interest, much less a substantial public

interest, in disqualifying low bidders for

technical deficiencies in form, where the

low bidder did not derive any unfair

competitive advantage by reason of the

technical omission. . . .

I n either event, there is a strong public

policy in favor of awarding contracts to the

low bidder, and an equal strong public

policy against disqualifying the low bidder

for technical deficiencies which do not

confer an economic advantage on one bidder

over another. Id. at 387. (Emphasis

supplied).

See also ESP Security and Satellite Engineering, Inc., v.

University of Florida, Physical Plant Division,

Architecture/Engineering Department , (Case No. 94 - 2035BID,

Division of Administrative Hearings, April 12 , 1995).

70. In the case at hand the Petitioner was the low bidder

by the substantial amount of approximately $241,000.00 on the

base bid. Its preponderant evidence shows it has in the past

and will on this school project intend to and perform in a way

that will result in quality work, accomplished on time and

within budget. Such has been its record in the projects in the

past, evidence of which is in the record of this proceeding.

The Board will be able to enforce the price and terms of the

Petitioner 's bid through the terms of the resulting contract.

Therefore there is no irregularity in responsiveness which would

adversely impact the interest of the Board and the taxpayers.

The Petitioner did not derive any unfair competitive advantage

over the oth er two original and higher bidders, because, under

the specifications they were all free to consider their

experience on similar projects, any data base of costs,

suppliers, and labor identity information and to also propose

self - performance in the subject work areas or in others, if they

so chose.

71. Accordingly, in consideration of the preponderant,

credible evidence underlying the above - found facts, and in view

of the above discussion and conclusions, it is determined that

Haycook's bid is responsiv e, responsible, and the lowest bid.

It has been demonstrated that the Respondent's bid evaluation

and intended award is factually and legally flawed. Therefore,

under the circumstances found and concluded above, the failure

to award the subject contract to Haycook would be arbitrary,

contrary to competition, and clearly erroneous. § 120.57(3)(f),

Fla. Stat. (2003).

72. Finally, the Petitioner asserts that if an agency

action determines the substantial interest of a party based upon

an un - adopted rule, then the agency action shall not be presumed

valid or invalid, but the agency must prove that the un - adopted

rule meets the standards enunciated in Section 120.57(1)(e),

Florida Statutes. The Petitioner asserts that the definition of

"self - performance" is not contained in the bid documents or any

written rules of the school board. The Petitioner asserts that

Ms. Drago testified that the interpretation at issue is based on

the Board's practice, which is not in writing. It asserts then

that this interpreta tion by the Board's staff architect and the

Board itself is an un - adopted rule which the Board must "prove -

up" in the manner envisioned in the above statute. The evidence

in this case however, does not clearly demonstrate that the

interpretation of the sp ecification as to "self - performance,"

clearly meets the definition of a rule embodied in Section

120.52, Florida Statutes, (2003). Moreover, to the extent that

the challenge to the interpretation of the specification as an

unpromulgated rule might be deem ed to be an attack on the

specifications in the bid documents, clearly the 72 hour period,

during which an attack on the specifications in an invitation to

bid or request for proposals can be mounted, long since elapsed

before the bids or offers were submi tted and thus is not timely.

§120.57(3)(b), Fla. Stat.

RECOMMENDATION

Having considered the foregoing Findings of Fact,

Conclusions of Law, the evidence of record, the candor and

demeanor of the witnesses, and the pleadings and arguments of

the parties, it is, therefore,

RECOMMENDED that a final order be entered by the School

Board of Volusia County awarding the contract for Elementary

School "X" to the Petitioner, D. J. Haycook Construction

Company, Inc.

DONE AND ENTERED this 8th day of March, 20 04, in

Tallahassee, Leon County, Florida.

S

___________________________________

P. MICHAEL RUFF

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 3 2399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with Clerk of the

Division of Administrative Hearings

this 8th day of March, 2004.

COPIES FURNISHED :

S. LaRue Williams, Esq uire

Kinsey, Vincent, Pyle, L.C.

150 South Palmetto Avenue, Box A

Daytona Beach, Florida 32114

Theodore R. Doran, Esquire

Michael G. Dyer, Esquire

Doran, Wolfe, Rost & Ansay

444 Seabreeze Boulevard, Suite 800

Post Office Drawer 15110

Daytona Beach, Flor ida 32115

William E. Hall

Superintendent

Volusia County School Board

Post Office Box 2118

Deland, Florida 32721 - 2118

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

10 days from the date of thi s Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.