08-004272BID Mid-State Paving Co., Inc. vs. Department Of Transportation Status: Closed Recommended Order on Friday, January 9, 2009.

Summary: A hyperlink on the Department`s webpage was not a bid specification, and therefore Intervenor was not required to comply with it. The Department`s proposed award did not violate relevant rules, statutes, or policies.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MID-STATE PAVING CO., INC., )

)

Petitioner, )

)

vs. ) Case No. 08-4272BID

)

DEPARTMENT OF TRANSPORTATION, )

)

Respondent, )

)

and )

)

KAMMINGA & ROODVOETS, INC., )

)

Intervenor. )

)

RECOMMENDED ORDER

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

on October 14, 2008, in Bartow, Florida, before Lawrence P.

Stevenson, a duly-designated Administrative Law Judge of the

Division of Administrative Hearings.

APPEARANCES

For Petitioner: James M. McCrae, Esquire

Law Office of Jim McCrae

Lake Mary Professional Campus

1349 International Parkway South

Suite 2421

Lake Mary, Florida 32746

For Respondent: C. Denise Johnson, Esquire

Department of Transportation

Haydon Burns Building, Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399-0450

For Intervenor: George E. Spofford, Esquire

Glenn Rasmussen Fogarty and Hooker, P.A.

100 South Ashley Drive, Suite 1300

Tampa, Florida 33602

STATEMENT OF THE ISSUE

Whether Respondent acted contrary to the agency's governing

statutes, rules or policies, or the bid specifications in its

proposed decision to award Contract No. T1285 to Intervenor

Kamminga & Roodvoets, Inc. ("K & R").

PRELIMINARY STATEMENT

On July 10, 2008, Respondent Department of Transportation

("Department") posted its intended award of Project No. 197593-

1-52-01, Proposal No. T1285 ("Contract T1285") for the

construction of the one-way pair on State Road 600 through Lake

Alfred. The notice of intent to award reflected that the

winning contractor was K & R. Mid-State Paving Co., Inc.

("Mid-State"), submitted the second-low bid. Mid-State filed a

notice of protest on July 14, 2008, and filed a formal written

protest on July 24, 2008. The case was forwarded to the

Division of Administrative Hearings ("DOAH") on August 28, 2008,

for assignment of an administrative law judge and the conduct of

a formal hearing. The hearing was initially scheduled to be

held on September 25 and 26, 2008.

On September 9, 2008, K & R filed a motion to intervene,

which was granted by order dated September 17, 2008. Also on

September 9, 2008, K & R filed an unopposed motion for

continuance. That motion was granted and the hearing was

rescheduled for October 14 and 15, 2008. The hearing convened

on October 14, 2008, and concluded on that date.

At the final hearing, Mid-State presented the testimony of

Alvin Mulford, its vice president. The Department presented the

testimony of Philip Davis, its state estimates engineer, and

Richard D. Riles, a general engineering consultant. The

Department's Exhibits 1 through 4 were admitted into evidence.

The Department's Exhibit 1 was the deposition testimony of

David A. Sadler, the director of the Department's office of

construction, and the exhibits attached to the deposition.

K & R presented the testimony of Marcus B. Tidey, Jr., the vice

president in charge of its Florida division. K & R's Exhibits

1 through 5 were admitted into evidence. In addition, Joint

Exhibits 1 and 2 were admitted by stipulation of all the

parties. Joint Exhibit 1 consisted of Mid-State's formal

written protest and 23 tabs of supporting documentation. Joint

Exhibit 2 contained the details of the Department's bid

tabulation.

A Transcript of the proceeding was filed at DOAH on

October 29, 2008, meaning that Proposed Recommended Orders would

be due on November 10, 2008. The Department timely filed its

Proposed Recommended Order on November 10, 2008. Also on

November 10, 2008, Mid-State filed a motion to extend the time

for filing proposed recommended orders until November 14, 2008,

due to "unexpected urgent matters" that required the attention

of Mid-State's counsel. Mid-State's motion contended that no

party would be prejudiced by the extension because as of the

time of the motion's filing, no proposed recommended orders had

been filed. In fact, the Department's Proposed Recommended

Order was filed roughly two hours before Mid-State's motion, but

the undersigned credited Mid-State's counsel with having been

unaware of that filing.

On November 12, 2008, K & R filed an objection to the

motion to extend, arguing that Mid-State waited until the

proposed recommended orders of the Department and K & R had been

served before filing its motion, thus obtaining the benefit of

reading the oppositions' proposed orders before filing its own.

However, regardless of whether its proposed order was served on

Mid-State on November 10, 2008, K & R had yet to file its

proposed recommended order at DOAH as of the morning of

November 12, 2008. Thus, only the Department had timely filed a

Proposed Recommended Order.

By order dated November 12, 2008, the undersigned granted

Mid-State's motion to extend the time for filing proposed

recommended orders until November 14, 2008, with the proviso

that the Department would be given until November 21, 2008, to

file a supplemental proposed recommended order 1 if it felt the

need to address any new arguments raised in Mid-State's proposed

recommended order.

K & R filed its Proposed Recommended Order on

November 12, 2008. Mid-State filed its Proposed Recommended

Order on November 14, 2008. By letter filed at DOAH on

November 18, 2008, the Department and K & R informed the

undersigned that they would not file supplements to their

proposed recommended orders. The parties' submissions have been

considered in the preparation of this Recommended Order.

All references to the Florida Statutes are to the 2008

edition, unless otherwise noted.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the

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

following findings of fact are made:

1. On May 14, 2008, the Department released its bid

solicitation for Contract T1285. The proposed contract was for

the construction of a one-way pair through Lake Alfred,

including new construction, reconstruction, milling and

resurfacing, widening, drainage improvements, lighting,

signalization, signing and pavement marking and landscaping on

State Road 600 (U.S. 17/92). Polk County, the location of the

project, lies in the Department's District 1.

2. Qualified contractors, including Mid-State and K & R,

received an electronic disk containing the solicitation, bid

blank, plans and specifications for Contract T1285.

3. The letting date for this project was June 18, 2008.

Bids were to be submitted on or before that date via Bid

Express, the electronic bidding system used by the Department.

4. No party submitted a protest of the terms, conditions,

and specifications contained in the solicitation pursuant to

Subsection 120.57(3)(b), Florida Statutes.

5. The work to be performed on Contract T1285 included the

installation of limerock road base to be paid for in accordance

with line item 0175, Optional Base Group 09 ("Base Group 09").

6. The bid documents included a set of "Supplemental

Specifications." Section 6 of the Supplemental Specification

was titled "Control of Materials." Subsection 6-3.3, titled

"Construction Aggregates," provided as follows: "Aggregates used

on Department projects must be in accordance with Florida

Administrative Code Rule 14-103." 2

7. Under the heading "Developmental Specifications" is a

February 15, 2008, revision to the Construction Aggregates

subsection that provides:

Subarticle 6-3.3 (Page 54) is expanded by the following:

6-3.3.1 Department Directed Source for

Aggregates: For this Contract, obtain aggregates

for use in limerock base from the following

vendor: Vulcan Construction Materials LP. Upon

award of the Contract, provide the vendor and the

Department a schedule of project aggregate needs.

Once a schedule has been provided to both the

Department and vendor, the Engineer will issue

written authorization, with a copy to the vendor,

for the purchase of aggregates from the vendor.

This authorization is required before aggregates

will be released by the vendor. Pick up the

required aggregate such that the project schedule

will be maintained. Payment to the vendor by the

Contractor will be due upon receipt of the

materials pursuant to the Department's Vendor

Contract No. BDH50. This rate is the unit price

agreed upon by the Department and the vendor and

will be made available to bid proposal holders at

the time of bid at

http://www.dot.state.fl.us/construction/aggregate

/aggregate.htm.

The Department will make payment to the

Contractor for the aggregates on progress

estimates as a part of the bid unit price for the

appropriate pay items. The rate is subject to

change and adjustments for such changes will be

made to the bid unit price of the appropriate pay

items.

Disputes with the vendor concerning

aggregate supply will not be cause for Contract

time adjustments, time suspensions or monetary

adjustments to the Contract amount. The

Contractor will be solely responsible for

providing the necessary advance notice to the

vendor and other coordination to obtain timely

aggregate supply for the project.

8. The import of Developmental Specification 6-3.3.1 was

that all bidders would be required to obtain the limerock needed

for Base Group 09 from a single vendor, Vulcan Construction

Materials LP ("Vulcan"). The winning bidder would agree to pay

Vulcan in accordance with a separate contract negotiated between

Vulcan and the Department.

9. The hyperlink provided in Developmental Specification

6-3.3.1 3 led to a document called "Aggregate Guidance" produced

by the Department's State Construction Office. The front page

of the Aggregate Guidance document contained "Bidder

Information" consisting of a spreadsheet setting forth the

Vulcan price per ton for limerock base and limestone coarse

aggregate, with the price varying depending on the date and port

of delivery. Between January and June 2008, the Vulcan price

per ton for limerock base from both the Port of Tampa and Port

Canaveral was $16.93.

10. The Aggregate Guidance page contained additional

hyperlinks with the following titles: "Aggregate Vendor Contract

Usage," "Aggregate Vendor Contract," "Aggregate Vendor Projects

List," "Aggregate Vendor Authorization Letter," "Aggregate

Vendor Contract Frequently Asked Questions," and "Aggregate

Price Adjustment Sheet."

11. Alvin Mulford is the vice-president of Mid-State who,

along with his estimator, put together his company's bid for

Contract T1285. Mr. Mulford testified that his company has been

bidding on Department work, and that he has never before seen a

provision similar to Developmental Specification 6-3.3.1.

Mr. Mulford directed his estimator to obtain clarification from

the Department, to be sure that the bidders were required to

purchase the limerock base from Vulcan.

12. One reason for Mr. Mulford's concern was the

"exorbitant" rate charged by Vulcan in comparison to other

vendors. The restriction to a single supplier was so abnormal,

and that supplier's rate was so out of line with the market,

that Mr. Mulford decided to seek guidance from the Department

through the question and response internet bulletin board

provided by the Department for its projects.

13. The question posed by Mid-State was as follows:

Does the contractor have to use Vulcan

materials for the limerock base at a rate of

$16.93 per ton as stated in the

Developmental Specifications 6-3.3.1? If so

from which location is the material to be

picked up? Is it also true that payment to

the vendor (Vulcan Materials) will be due

immediately upon receipt of the materials?

I wanted to clarify this issue as it is

unusual for the contractor to be limited to

the use of only one vendor.

14. The Department's response was as follows:

The unit rate for the Material can be found

at the following website:

http://www.dot.state.fl.us/construction/

Aggregate/Aggregate.htm

Pickup locations for the Material can be

found at the following website:

http://www.dot.state.fl.us/construction/

Aggregate/Aggregate.htm

Payment should be issued by the Contractor

to the Vendor (Vulcan Construction

Materials LP) upon receipt of the materials

as defined in Developmental Specification

6-3.3.1.

15. Because the Department's response did no more than

redirect him to the Department's website, Mr. Mulford decided to

look at the website in more detail. He investigated the

hyperlinks, including the Vulcan contract with the Department.

When he clicked on the hyperlink titled "Aggregate Vendor

Contract Usage," he found a document that provided as follows,

in relevant part:

Aggregate Vendor Contract Usage by Districts

With the execution of the contract with

Vulcan Construction Materials LP, contract

number BDH50, Vulcan has committed to

provide aggregate in the types and

quantities defined in the contract

(attached).

The process for this contract in Districts

1, 5, and 7, is as follows:

1. Include in the projects identified in

the attached spreadsheet the appropriate

special provision beginning with the July

2007 lettings. The District Specifications

Engineer and District Construction Office

will need to coordinate this effort.

2. There are two special provisions for the

purpose of notifying construction contract

bidders of the Department's intention toward

the aggregate. The first special provision

is the mandatory version that will direct

the bidder to obtain aggregates for the

specified work from Vulcan. The second

special provision provides the bidder an

option to obtain its aggregates from Vulcan.

* * *

5. After these projects have been awarded,

the contractor is required to notify FDOT

and Vulcan a schedule of its aggregate needs

for the project. After receiving this

schedule, FDOT's Resident Engineer will

issue written authorization to the

contractor, with copy to Vulcan. This

authorization is required before Vulcan will

release aggregate to the contractor.

6. Payment to Vulcan will be from the

contractor. FDOT will pay cost of aggregate

on progress estimates as part of the

contractor's bid price for the work.

The contractor is required to include in its

bid price for the work the cost of the

aggregate at the Vulcan rate. The Vulcan

rate will be posted on the FDOT State

Construction Website showing the rate. When

adjustments are made to the Vulcan rate,

FDOT will make adjustments in the

construction contract unit price. . . .

(Emphasis added.)

16. Mr. Mulford testified that he understood the

underscored language in the hyperlinked document to be a

directive to the bidders and therefore a mandatory requirement

of the bid specifications. He did not ask the Department for

further clarification because he believed the requirement was

clearly stated in the hyperlinked document.

17. David Sadler, the director of the Department's office

of construction, testified that the hyperlinked document was

developed by his office to offer guidance to the districts as to

the concept behind and use of the aggregate vendor contract.

The document was not a part of the bid solicitation document.

18. Mid-State's bid price was $7,429,398.44. Mid-State's

price for Base Group 09 was $619,645.80, or $19.30 per square

yard. This price reflected the Vulcan rate for limerock base of

$16.92 plus tax and Mid-State's costs for the work associated

with Base Group 09.

19. K & R's bid price was $7,370,505.24, or $58,893.20

lower than the bid price of Mid-State. K & R's price for Base

Group 09 was $256,848.00, based on a stated unit price of $8.00

per square yard for limerock base. K & R's price for Base

Group 09 was $362,797.80 lower than that of Mid-State,

accounting for more than the differential between the overall

bids of Mid-State and K & R.

20. Marcus Tidey, Jr., K & R's vice president in charge of

its Florida division, testified that K & R was well aware that

the Vulcan price for limerock base was $16.93, and that K & R

understands its obligation to pay that price to Vulcan should

K & R be awarded Contract T1285. Mr. Tidey testified that at

the time of bid submission, he cut K & R's bid price to $8.00

per square yard as a competitive strategy to win the contract.

Mr. Tidey made a conscious decision that K & R would absorb the

difference between $8.00 bid price and the Vulcan price of

$16.93.

21. Mr. Tidey testified that K & R needed to win this job

in order not to have its crews and equipment sit idle during the

economic downturn, and therefore decided to take all of its

markup, roughly $250,000, out of the bid. He could have made

the $250,000 cut on any item or items in the bid, but decided on

Base Group 09 because the limerock base was a big item and

therefore easy to cut by a large amount.

22. Mr. Tidey also testified that the contract provides a

$400,000 incentive payment for early completion of the job,

meaning that K & R will be able to work "faster and smarter" and

make up for the price reduction at the end of the job.

23. Mr. Tidey testified that he obtained the Vulcan prices

from the Department's website as instructed by Developmental

Specification 6-3.3.1. He did not click on the hyperlinks,

which appeared to reference the contract between the Department

and Vulcan and therefore was of no concern to him.

24. The Department and K & R dispute Mid-State's assertion

that the underscored language of the hyperlink set forth in

Finding of Fact 15 was a requirement of the bid specifications,

based on Mr. Sadler's direct testimony and the underlying

illogic and unfairness of requiring bidders to seek out hidden

specifications. The Department and K & R concede that if the

bid specifications did in fact require the bidders to include in

Base Group 09 the full costs associated with obtaining the

limerock base from Vulcan, then K & R's bid is nonresponsive.

25. Developmental Specification 6-3.3.1 directed bidders

to the Department's webpage for the purpose of obtaining the

current Vulcan rate quote. It did not instruct the bidders to

investigate the hyperlinks or to assume that the information

contained therein was mandatory. Absent an instruction to

bidders to review the information contained in the hyperlinks,

the Department could not make such information mandatory without

placing less curious bidders at a competitive disadvantage. The

Department had no intent to play hide-and-seek with the bid

specifications in the manner suggested by Mid-State.

26. In addition, K & R points to three line items of the

bid specifications in which the Department eliminates

competition, instructing the bidders not to bid and inserting a

fixed unit price and bid amount for all bidders as to those

items. K & R reasonably asserts that the Department was fully

capable of treating Base Group 09 in the same fashion, had it

intended to require the bidders to pass through to the

Department all the costs associated with obtaining the limerock

base from Vulcan. However, the Department supplied the bid

quantity (31,106 square yards) and left it to the bidders to

determine the price per unit they would bid.

27. K & R's bid was responsive. Nothing in the bid

specifications prevented K & R from absorbing part of the cost

of the Vulcan limerock base and passing the savings on to the

Department, or required bidders to pass on to the Department the

full costs of complying with the bid specifications regarding

Base Group 09.

28. The sole remaining issue is whether K & R's bid,

though facially responsive, was materially unbalanced. The

Department routinely conducts reviews of bid line items that

appear "unbalanced," i.e., for which there appear to be

significant differences between the price bid and the

Department's cost estimate, in order to determine whether the

price difference is due to a quantity error by the bidder. The

Department's review confirms that the bid quantity specified on

the bid blank is accurate.

29. If a quantity error is found, the bids are

recalculated using the bidders' unit prices and the correct

quantities to determine whether the bid rankings would change.

A bid for which there is a discrepancy between the bid and the

Department's estimate is termed "mathematically unbalanced." A

mathematically unbalanced bid that affects the ranking of the

low bid is "materially unbalanced." A mathematically unbalanced

bid is acceptable, but a materially unbalanced bid affords the

bidder an unfair competitive advantage and must be rejected.

30. The Department followed its usual procedure in

analyzing the K & R bid to determine whether it was unbalanced.

Philip Gregory Davis, the Department's state estimates engineer,

testified that there were some unbalanced items in the K & R

bid, but no quantity errors that would have changed the ranking

of the bids.

31. Richard Ryals, the project designer who conducted the

unbalanced bid review, testified that the quantities were

correct for Base Group 09. As noted above, K & R's low bid for

Base Group 09 was an intentional strategy, not the result of a

quantity error.

32. K & R's current bonded capacity qualification with the

Department is $258 million in contracts at any one time. K & R

posted a bid bond, and has more than enough capacity to

comfortably perform this contract. There is no economic danger

to the Department in accepting K & R's low bid.

CONCLUSIONS OF LAW

33. The Division of Administrative Hearings has

jurisdiction over the parties to and subject matter of this

cause, pursuant to Section 120.569 and Subsection 120.57(3),

Florida Statutes.

34. Subsection 120.57(3)(f), Florida Statutes, provides in

pertinent part:

. . . . 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's 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 proceedings shall

be whether the proposed agency action was

clearly erroneous, contrary to competition,

arbitrary, or capricious. . . .

35. Pursuant to Subsection 120.57(3)(f), Florida Statutes,

the burden of proof rests with Mid-State as the party opposing

the proposed agency action to prove "a ground for invalidating

the award." See State Contracting and Engineering Corp. v.

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

1998). Mid-State must prove by a preponderance of the evidence

that the Department's proposed award of the contract to K & R is

arbitrary, capricious, or beyond the scope of the Department's

discretion as a state agency. Department of Transportation v.

Groves-Watkins Constructors , 530 So. 2d 912, 913-914 (Fla.

1988); Department of Transportation v. J.W.C. Co., Inc. , 396

So. 2d 778, 787 (Fla. 1st DCA 1981). See also § 120.57(1)(j),

Fla. Stat.

36. The First District Court of Appeal has interpreted the

process set forth in Subsection 120.57(3)(f), Florida Statutes,

as follows:

A bid protest before a state agency is

governed by the Administrative Procedure

Act. Section 120.57(3), Florida Statutes

(Supp. 1996) [4] provides that if a bid

protest involves a disputed issue of

material fact, the agency shall refer the

matter to the Division of Administrative

Hearings. The administrative law judge must

then conduct a de novo hearing on the

protest. See § 120.57(3)(f), Fla. Stat.

(Supp. 1996). In this context, the phrase

" de novo hearing" is used to describe 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 Intercontinental

Properties, Inc. v. Department of Health and

Rehabilitative Services , 606 So. 2d 380

(Fla. 3d DCA 1992) (interpreting the phrase

" de novo hearing" as it was used in bid

protest proceedings before the 1996 revision

of the Administrative Procedure Act).

State Contracting and Engineering Corp. , 709 So. 2d at 609.

37. As outlined in Subsection 120.57(3)(f), Florida

Statutes, the ultimate issue in this proceeding is "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." In addition to proving that the Department

breached this statutory standard of conduct, Mid-State also must

establish that the Department's violation was either clearly

erroneous, contrary to competition, arbitrary, or capricious.

§ 120.57(3)(f), Fla. Stat.

38. The First District Court of Appeal has described the

"clearly erroneous" standard as meaning that an agency's

interpretation of law will be upheld "if the agency's

construction falls within the permissible range of

interpretations. If, however, the agency's interpretation

conflicts with the plain and ordinary intent of the law,

judicial deference need not be given to it." Colbert v.

Department of Health , 890 So. 2d 1165, 1166 (Fla. 1st DCA 2004)

(Citations omitted).

39. An agency decision is "contrary to competition" when

it unreasonably interferes with the objectives of competitive

bidding. Those objectives have been stated to be:

[T]o protect the public against collusive

contracts; to secure fair competition upon

equal terms to all bidders; to remove not

only collusion but temptation for collusion

and opportunity for gain at public expense;

to close all avenues to favoritism and fraud

in various forms; to secure the best values

for the [public] at the lowest possible

expense; and to afford an equal advantage to

all desiring to do business with the

[government], by affording an opportunity

for an exact comparison of bids.

Harry Pepper & Associates, Inc. v. City of Cape Coral , 352

So. 2d 1190, 1192 (Fla. 2d DCA 1977), quoting Wester v. Belote ,

138 So. 2d 721, 723-724 (Fla. 1931).

40. An agency action is capricious if the agency takes the

action without thought or reason or irrationally. An agency

action is arbitrary if is not supported by facts or logic. See

Agrico Chemical Co. v. Department of Environmental Regulation ,

365 So. 2d 759, 763 (Fla. 1st DCA 1978).

41. To determine whether an agency acted in an arbitrary

or capricious manner, it must be determined "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).

42. However, if a decision is justifiable under any

analysis that a reasonable person would use to reach a decision

of similar importance, the decision is neither arbitrary nor

capricious. Dravco Basic Materials Co., Inc. v. Department of

Transportation , 602 So. 2d 632, 634, n. 3 (Fla. 2d DCA 1992).

43. Mid-State failed to meet its burden of proof. The

evidence presented at the hearing did not establish that the

Department's proposed award of Contract T1285 to K & R is

contrary to the bid solicitation, contrary to the Department's

governing statutes, rules or policies, or that the proposed

award is clearly erroneous, contrary to competition, arbitrary

or capricious. The preponderance of the evidence established

that K & R's proposal was responsive to the requirements of the

bid solicitation and that the Department acted well within its

governing statutes, rules and policies.

44. The evidence at hearing established that the

Department has in place routine procedures for the review of bid

items that appear mathematically imbalanced, and that the

Department followed these procedures in determining that K & R's

bid was not materially imbalanced.

45. The evidence established that Developmental

Specification 6-3.3.1 required bidders to purchase aggregates

for use in the limerock base from Vulcan, and that K & R

complied with this requirement.

46. The evidence established that Mid-State misinterpreted

an informational hyperlink on the Department's website to be a

mandatory bid specification. The bid specifications did not

require the bidders to include in Base Group 09 the full costs

associated with obtaining the limerock base from Vulcan. K & R

was not prohibited from bidding a discounted rate for Base

Group 09.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law set forth herein, it is

RECOMMENDED that the Department of Transportation enter a

final order dismissing Mid-State's formal written protest and

awarding Contract T1265 to K & R.

DONE AND ENTERED this 9th day of January, 2009, in

Tallahassee, Leon County, Florida.

S

LAWRENCE P. STEVENSON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 9th day of January, 2009.

ENDNOTES

1/ A typographical error in the order referenced the

Department's filing as a "proposed final order."

2/ Florida Administrative Code Rule 14-103.001 provides the

scope of the referenced Chapter 14-103:

This rule chapter provides the requirements

and procedures for obtaining and maintaining

Department approval of developed and

operational construction aggregate sources

(mines and redistribution terminals) and

their individual construction aggregate

products which are intended for use on

Department projects. Department approval is

based upon the existence of suitable raw

materials; processing facilities capable of

producing specified aggregate meeting

Department specification requirements; and

an effective Quality Control Program

assuring the continuing quality and

uniformity of that production.

Florida Administrative Code Rule 14-103.002(1) sets forth

the purpose of Chapter 14-103:

This rule chapter sets out a standardized

method for producers of construction

aggregates to apply for, receive, and

maintain Department approval of construction

aggregate sources for use on Department

projects. Source and product approval, and

maintenance of an on-going effective Quality

Control Program, as monitored by the

Department’s Quality Assurance procedures,

comprise the Department’s primary methods of

determining acceptability of aggregate on

Department projects.

3/ The hyperlink provided in the specification is either

outdated or contained a typographical error at the time the

specifications were published. The correct hyperlink is:

http://www.dot.state.fl.us/construction/Aggregate/Aggregate.shtm

4/ The meaning of the operative language has remained the same

since its adoption in 1996:

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. . . .

§ 120.57(3)(f), Fla. Stat. (1997).

COPIES FURNISHED :

James C. Myers,

Clerk of Agency Proceedings

Department of Transportation

Haydon Burns Building

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399-0450

Alexis M. Yarbrough, General Counsel

Department of Transportation

Haydon Burns Building

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399-0450

Stephanie Kopelousos, Secretary

Department of Transportation

Haydon Burns Building

605 Suwannee Street, Mail Station 57

Tallahassee, Florida 32399-0450

C. Denise Johnson, Esquire

Department of Transportation

Haydon Burns Building, Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399-0450

Alvin Mulford

Mid-State Paving Co., Inc.

347 Bolender Road

Auburndale, Florida 33823

George E. Spofford, IV, Esquire

Glenn, Rasmussen, Fogarty & Hooker, P.A.

Post Office Box 3333

Tampa, Florida 33601-3333

James M. McCrae, Esquire

Law Office of Jim McCrae

Lake Mary Professional Campus

1349 International Parkway South

Suite 2421

Lake Mary, Florida 32746

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.