07-004365BID Expertech Network Installation, Inc. vs. City Of Cape Coral Status: Closed Recommended Order on Friday, November 9, 2007.

Summary: Respondent properly rejected Petitioner`s bid for the pipe replacement project.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EXPERTECH NETWORK INSTALLATION, )

INC. , )

)

Petitioner , )

)

vs. ) Case No. 07 - 4365BID

)

CITY OF CAPE CORAL , )

)

Respondent . )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted in this

case on October 10, 2007, in Cape Coral, Florida, before

Administrative Law Judge R. Bruce McKibben of the Division of

Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: William S. Isenb erg, Esquire

William S. Isenberg and Associates, P.A.

2005 South Federal Highway, Suite 100

Fort Lauderdale, Florida 33316

For Respondent: Mark Edward Lupe, Esquire

Marilyn W. Miller, Esquire

City of Cape Coral

Post Office Box 150027

Cape Coral, Florida 33915

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent's decision to

reject the galvanized pipe replacement bid of Petitioner as non -

responsive was erroneous, an abuse of discre tion, arbitrary or

capricious.

PRELIMINARY STATEMENT

Respondent, the City of Cape Coral (the "City") , issued an

Invitation to Bid concerning replacement of gal vanized pipe.

Petitioner was one of the companies responding to the Invitation

to Bid. The City rejected Petitioner's bid as unresponsive and

awarded the contract to Guymann Construction of Florida, Inc.

(Guymann). Guymann did not file any pleadings or o ther

materials in this case and did not make an appearance at final

hearing. Upon entry of the Notice of Intent to Award by the

City, Petitioner filed a Protest of Intended Bid Award. The

matter was forwarded to the D OAH pursuant to the City's

Administra ti ve Law Judge Services Contract.

Pursuant to City Ordinance 68 - 07, a final hearing was

scheduled by stipulation of the parties on October 10, 2007

(even though that date was more than 15 days after receipt of

the protest at DOAH). At final hearing both p arties were

represented by counsel. Petitioner called four witnesses at the

final hearing: John Wood, d irector of U.S. Operations for

Petitioner; Michael Heitzler, s enior p roject m anager for

Petitioner; David Marinelli, v ice p resident of U.S. Operations

for Petitioner; and Justin Fredericksen, p roject m anager for

TetraTech. Petitioner's E xhibits A through K were admitted into

evidence. Respondent called three witnesses: Justin

Fredericksen ; David Vallandingham, a ssistant s uperintendent for

Public Works wit h the City; and George Reilly, u tilities m anager

for the City. Respondent's E xhibits 1 through 1 3 were admitted

into evidence by stipulation.

A T ranscript of the final hearing was filed with DOAH on

October 23, 2007 . The parties were given until Octo ber 26 ,

2007, to file proposed findings of fact, conclusions of law, and

written closing statements. Petitioner asked and was granted

three additional days to submit its proposed recommended order.

Each party timely filed a P roposed R ecommended O rder , an d each

was duly - considered in the preparation of this R ecommended

O rder.

FINDINGS OF FACT

1. Petitioner, Expertech Network Installation, Inc., is a

division of Bell Canada. Petitioner is a construction and

engineering division of the parent company. It was set up to

expand the parent's operations into the United States about nine

years ago. Petitioner has steadily replaced its Canadian

employees with U.S. employees over those years.

2. The City is a governmental entity established under the

laws of t he State of Florida. By contract with the D OAH , the

City has agreed to utilize Administrative Law Judges to hear,

inter alia , bid protests involving the City.

3. On May 7, 2007 , the City issued Invitation to Bid

No. ITB - PW060607 - 88. The Invitation t o Bid sought bids for

replacement of approximately 38,000 linear feet of two - inch

galvanized pipe and associated appurtenances with 38,000 feet of

four and six - inch DR18 PVC piping and associated appurtenances.

The replacement would include approximately 385 service

connections with Sch - 80 PVC piping, all within the area known as

Section 4 of the City. In addition, the scope of work included

relocation of approximatel y 460 linear feet of eight - inch PVC

water main pipe and associated appurtenances with 600 linear

feet of eight - inch DR18 PVC piping and appu rtenances along State

Road 78.

4. A total specification package and complete set of

drawings for the aforementioned work was prepared by the City's

consulting engin eer, TetraTech - HAI (hereinafter "Ttech" ). The

specifications and drawings by Ttech were made a part of the

Invitation to Bid.

5. A pre - bid conference was held on May 16, 2007. At that

conference, several issues were discussed, resulting in issuance

of an Addendum to the Invitation to Bid. The Addendum was

issued the same day as the conference and in cluded the following

paragraph:

Will the City allow directional drilling on

the galvanized pipe replacement project?

No. All references to directional drilling

on the galvanized pipe replacem ent project

are to be modified to jack & bore. All

water main piping proposed to cross

driveways shall be installed via jack & bore

or open cut methods. Water main piping

proposed to cross roadways, including long

side services, shall be installed by jac k &

bore methods. Directional drilling is

acceptable for the roadway crossings on the

SR 78 Water Main Replacement portions only.

Please see the enclosed revised Measurement

and Payment section of the specifications

(0 1025) and revised bid schedule. ( Em phasis

in original document. )

6. The Addendum also extended the due dates for bids by

one week, to June 13, 2007. No protest was filed with the City

with respect to the terms, conditions or specifications

contained in the Invitation to Bid and the Adde ndum. On

Wednesday, June 13, 2007, the City opened the bids.

7. Petitioner's bid was the low bid for the project. Its

bid included a price of $1,816,224 , as compared to the second

lowest bidder, Guymann (whose bid came in at $1,987,561). 1 The

bids wer e then reviewed by Ttech for conformity to the

Invitation to Bid.

8. On July 31, 2007 , Ttech notified the City that it was

recommending approval of the Guymann bid despite Petitioner

being the low bidder. The justification for that recommendation

was as follows:

The lowest apparent bidder on the project

was Expertech Network Installation, Inc.

(Expertech) with a total bid of

$1,8 16 , 2 24.00. [Ttech] reviewed Expertech's

bid package and found that the required list

of at least five completed projects of t he

type as the Galvanized Water Main

Replacement project was not included in the

package. [Ttech] contacted Expertech

concerning the incomplete bid package and

requested that Expertech provided the

required list of at least five projects

completed by Expe rtech of similar type as

the Galvanized Water Main Replacement

project. The list provided by Expertech did

not include any completed projects of the

type as the Galvanized Water Main

Replacement.

9. On August 7, 2007, the City issued its Notice of Inte nt

to Award, stating that the procurement division of the City

would recommend award of the bid to Guymann as the most

responsive, responsible bidder meeting the terms, conditions ,

and specifications set forth in the Invitation to Bid.

10. Petitioner t imely filed a Notice of Intent to Protest;

its Formal Written Protest was timely filed on August 24, 2007,

along with the required bond.

11. There are three methods of drilling utilized for

laying pipe in the ground: d irectional drilling, o pen c ut

dri lling, and j ack & b ore drilling. A brief discussion of each

is necessary in order to understand the dispute in this matter.

Directional drilling is done utilizing a machine that is guided

underground using steel rods. A person above ground with a

soundin g device directs the steel rods from one point to

another. Directional boring is used when trenching or

excavating is not practical. Directional boring minimizes

environmental disruption. Jack & b ore drilling (or auger

drilling) is similar to directiona l drilling in that it has an

entrance pit , and then the pipe is manually jacked along the

desired path while simultaneously excavating the soil. It is

often used in projects that have to go under existing roads or

driveways. Open c ut drilling is the old, traditional method of

digging a trench in the ground and l aying the pipe in the open

cut.

12. The Invitation to Bid, at page 10 of 53, included a

request for each bidder to provide evidence of its experience

with similar projects. Paragraph 5 asked for a list "of the

last five projects of this type your organization has

completed." 2 Paragraph 6 asked for a list "of projects of this

type that your organization is currently engaged in." The lists

of projects were to be completed as set forth in a table

attached to the Invitation to Bid. The table is recreated

below:

PROJECT YOUR CONTRACTOR REQUIRED ACTUAL NAME,

TITLE CONTRACT OR SUB COMPLETION COMPLETION ADDRESS

& AMOUNT DATE DATE &

LOCATION PHONE #

13. In its Bid, Petit ioner provided a document entitled

"Bidders Qualifications" in response to p aragraph 5. The

document was not on the table provided and was not entirely

responsive to the information requested ( i.e. , it did not

indicate whether Petitioner was contractor or subcontractor ;

there were no completion dates, and there were no contact

persons). Nonetheless, the list contained eight completed

projects. Those projects included two water main projects; the

other six completed projects were telecommunication project s.

While both types of projects would include drilling, there are

distinct differences between the two. For example, water and

wastewater projects require pressure testing, bacterial testing,

and permitting that telecommunication projects do not.

Petiti oner's list also included projects that involved

directional drilling. Since directional drilling was

specifically prohibited in the galvanized pipe replacement

project, those projects would not be deemed substantially

similar in type. 3

14. During the i nitial review of the bids, Ttech had

specifically asked Petitioner to provide the required list of

five completed projects of a similar type. In response,

Petitioner submitted a list of four projects , which were listed

as "Currently in Progress." Again, the projects were submitted

on a form other than the table provided in the Invitation to

Bid. When Ttech followed up with the project contacts, it found

that there had been no open cut drilling on two of them; the

other two had not yet begun. However, by the date of final

hearing the projects were substantially complete.

15. After Petitioner had submitted its list of projects, a

meeting was called at the City. Petitioner was represented at

the meeting along with City personnel and a representative fro m

Ttech. Notes from that meeting, though inconclusive, seem to

indicate that the requirement for five completed jobs of a

similar nature was discussed. It is unclear whether

Petitioner's representative was still at the meeting when this

was discussed. H owever, it does not appear that anyone from the

City or Ttech sent Petitioner a written request to provide

evidence of additional work performed. Nor is there any

evidence that the City or Ttech had an obligation to do so. At

any rate, Petitioner did not submit any evidence of similar

projects other than those discussed above.

16. There were notes made by attendees of the meeting.

None of the notes submitted into evidence was conclusive as to

all issues that were discussed at that time. However, in no tes

relating to a telephone conversation five days later, Ttech's

representative noted discussing with Petitioner the need to

provide evidence of five similar projects , which means that at

the time of the June 9 , 2007, meeting, Ttech was still

attempting t o get the required list of projects from Petitioner.

17. The projects submitted by Petitioner include

directional drill excavation projects , which involved at least

some open cuts ( i.e. , to make tie - ins at each end of the

directional drill section). No ne of those projects was

substantially similar in type to the proposed project, but did

include s ome open cut work.

CONCLUSIONS OF LAW

1 8 . DOAH has jurisdiction over this matter pursuant to a

contract with the City and in accordance with City Ordinance

No. 68 - 07 .

1 9 . Cape Coral City Ordinance No. 68 - 07 sets forth the

procedures for bidding on projects involving the City. Included

in the rules for the bid selection process is a mandate that the

City evaluate "[T]he professional qualifications, related

experience and adequacy of the personnel assigned to the

project" and also "[T]he prior experience and references of the

proposer." § 2 - 144(i)(4)(b), Ordinance 68 - 07. The failure of

Petitioner to submit a list of five completed projects related

to galvan ized pipe replacement made it impossible for the City

to properly evaluate Petitioner's experience and professional

qualifications.

20 . The burden of proof in this case would be on

Petitioner , as it attempts to prove that its bid satisfied all

the requir ements of the invitation to bid. Petitioner must

establish by competent substantial evidence that it complied

with the requirements in the Invitation to Bid, i.e., that

Petitioner's bid included the required lists of pending and

approved projects of the s ame kind. See , e.g. , Asphalt Pavers,

Inc. v State of Florida, Department of Transportation , 602 So.

2d 558 (Fla. 1st DCA 1992).

21 . A bid challenge proceeding is de novo in nature, but

de novo in the form of an intra - agency review to evaluate the

action taken by the [municipality] at the time it took the

action. State Contracting and Engineering Corporation v .

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

1998). The Administrative Law Judge in such cases does not sit

as a substitute for th e municipality in determining whether the

right party prevailed in the proceeding. "Instead, the [ALJ]

sits in a review capacity , and must determine whether the bid

review criteria . . . have been satisfied." Intercontinental

Properties, Inc. v. State De partment of Health and

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

1992).

2 2 . In order for Petitioner herein to prevail, it must

prove by a preponderance of the evidence that the City's

decision to reject Petitioner's bid was clearly erron eous,

contrary to competition or arbitrary and capricious. See Miami -

Dade County School Board v. Ruiz School Bus Service, Inc. ,

874 So. 2d 59 (Fla. 3rd DCA 2004), wherein the court discussed

material deviations from bid specifications. An omission or

de viation would be considered minor if it does not give the

owner of the project "a ny reason to doubt the bidder's ability

to fulfill their contracts." Id. at 60. Inasmuch as the City's

rejection of Petitioner's bid was based on the fact that

Petitioner fa iled to provide substantive information concerning

its experience, the omission of five similar projects could not

be deemed minor. Petitioner has not met its burden to prove

that Respondent's actions were erroneous, contrary to

competi tion, arbitrary or capricious.

2 3 . The City's action concerning Petitioner's bid was

based on logic and reason. If it could not ascertain

Petitioner's experience, the City could not comfortably award a

contract to that entity.

RECOMMENDATION

Based on the foregoing Findi ngs of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be entered by the City of

Cape Coral upholding its rejection of Petitioner's bid for the

galvanized pipe replacement project.

DONE AND ENTERED this 9th day of November , 2007 , in

Tall ahassee, Leon County, Florida.

S

R. BRUCE MCKIBBEN

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 9th day of November, 2007 .

ENDNOTES

1/ There were eight other bids submitted, but none of the other

bidders protested the award; thus, their bids are not relevant

to this discussion.

2/ "Type" is defined in The American Heritage Dictionary of the

English Language as "A group of persons or things sharing common

traits or characteristics that distinguish them as an

identifiable group or c lass; a kind of category." As no other

definition of "type" was presented at final hearing, this

definition will be used for purposes of this case. No

substantive distinction exists between "same type" as opposed to

"'sim ilar type' " or any other type.

3 / The addendum to the Invitation to Bid did allow for some

minor directional drilling, but the vast majority of the project

involved the other methods of drilling.

4/ Unless specifically stated otherwise herein, all references

to Florida Statutes shall be to the 2007 version.

COPIES FURNISHED :

William S. Isenberg, Esquire

William S. Isenberg and Associates, P.A.

2005 South Federal Highway, Suite 100

Fort Lauderdale, Florida 33316

Mark Edward Lupe, Esquire

Marilyn W. Miller, Esquire

City of Cape Cor al

Post Office Box 150027

Cape Coral, Florida 33915

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

1 0 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.