12-002870BID Commercial Industrial Corporation vs. Department Of Transportation Status: Closed Recommended Order on Tuesday, November 20, 2012.

Summary: Petitioner did not prove that contract award to another bidder was contrary to statute, rule, policy, or RFP specifications. By failing to meet RFP's pre-qualification requirements, Petitioner's proposal was non-responsive.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

COMMERCIAL INDUSTRIAL )

CORPORATION , )

)

Petitioner , )

)

vs. ) Case No. 12 - 2870BID

)

DEPARTMENT OF TRANSPORTATION , )

)

Respondent . )

)

RECOMMENDED ORD ER

Pursuant to notice, the final hearing was held in this case

on September 28, 2012, in Tallahassee, Florida, before

Administrative Law Judge Elizabeth W. McArthur of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Commercial Indust rial Corporation, pro se,

b y its designated representative,

Jay T. Blankenfeld, Vice - President

11810 Northwest 115th Avenue

Reddick, Florida 32686

For Respondent: C. Denise Johnson, Esquire

Department of Transportation

Haydon Burns Building, Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent ' s intended

decision to award a contract, challenged by Petitioner, is

contrary to Responde nt ' s governing statutes, rules, policies, or

the proposal specifications.

PRELIMINARY STATEMENT

The Department of Transportation (Department or Respondent)

issued a request for proposals (RFP) for a " low bid design - build "

project for the Daytona Avenue bri dge replacement in Volusia

County, designated as procurement contract n o. E5R63 (the

Project). On July 2, 2012, the Department posted notice of its

intended decision to award a contract for the Project to Gregori

Construction & Engineering, Inc (Gregori). A competing proposal

submitted by Commercial Industrial Corporation (Commercial or

Petitioner) was declared non - responsive.

On July 3, 2012, Commercial timely filed a notice of protest

pursuant to section 120.57(3), Florida Statutes (2012). 1/ On

July 10 , 2012, Commercial timely filed a formal written protest,

specifying the reasons for its challenge to the Department ' s

decisions. Commercial protested the decision to declare its

proposal non - responsive due to non - compliance with certain

pre - qualification requirements, because Commercial asserted that

this was a " minor informality " that the Department could have

waived. Commercial also protested the contract award to Gregori.

Commercial contended that the proposals of Gregori and a third

bidder should ha ve been deemed non - responsive because the prices

bid by these two bidders were higher than the " advertised not to

exceed budget amount. "

Following an unsuccessful attempted resolution meeting

pursuant to section 120.57(3)(d)1., the Department referred

Comm ercial ' s protest to the Division of Administrative Hearings .

The final hearing was scheduled, and an O rder of P re - H earing

I nstructions was entered to establish expedited pre - hearing

procedures, including shortened discovery deadlines, necessitated

by the accelerated statutory time - frames for bid protest

proceedings.

The Department served interrogatories and requests for

admissions on Commercial. Pursuant to the expedited discovery

schedule, Commercial was required to serve its responses and

objections by delivery to the Department no later than

September 19, 2012. This deadline was not met. The Department

notified Commercial that its discovery responses were past due

and allowed Commercial until noon on September 21, 2012, to

respond. Commercial served answers to the Department ' s

interrogatories by the extended deadline; however, Commercial did

not serve written responses or objections to the requests for

admissions.

On September 24, 2012, the Department filed a motion to deem

admitted the matters on whi ch admissions were requested. A

telephonic motion hearing was conducted. Commercial was self -

represented by its designated corporate representative, Jay T.

Blankenfeld, v ice - p resident. Mr. Blankenfeld acknowledged that

Commercial had received the reques ts for admissions. Although he

apologized for not responding by the due date or by the extended

due date, he offered no excuse to justify that omission. By

O rder entered September 25, 2012, the Department ' s motion was

granted, and the 19 paragraphs on wh ich admissions were requested

were deemed admitted for purposes of this proceeding. 2/

The parties filed a joint pre - hearing stipulation on

September 27, 2012, in which they stipulated that the 19

paragraphs in the Department ' s requests for admissions were

" admitted facts. " These admitted facts are incorporated in the

findings of fact below. Notwithstanding the admitted facts,

Commercial stated as its position that it considers its failure

to meet the pre - qualification requirements to be a " minor

informali ty, " considering the experience of the person who was

not pre - qualified. Commercial also reiterated its position that

the other two bidders should have been disqualified for their

prices " exceeding the maximum budget amount. " In addition,

Commercial asse rted a new position, contending that Gregori ' s

proposal should have been disqualified for another reason besides

the price. The Department objected to Commercial ' s attempt to

inject a new issue, not pled in the formal written protest.

At the outset of the final hearing, Commercial withdrew the

new position it had attempted to raise in the joint pre - hearing

stipulation. The parties offered Joint Exhibits 1 and 2, which

were admitted in evidence. Petitioner presented the testimony of

Mr. Blankenfeld, who w as allowed to testify in narrative form.

Petitioner also was permitted to present testimony of the

Department ' s representative, Alan Hyman, P.E., director of

T ransportation O perations for the Department ' s District 5.

Petitioner was permitted to offer Resp ondent ' s Exhibits 2 and

6A through 6E, 3/ which were admitted in evidence.

Respondent presented the testimony of Mr. Hyman and Michelle

Sloan, procurement services manager s for District 5. Respondent

did not offer any additional exhibits besides the two jo int

exhibits and the two Respondent ' s Exhibits that were offered by

Petitioner and admitted.

The evidentiary record was closed at the end of the final

hearing. The one - volume Transcript of the final hearing was

filed on October 23, 2012. The parties time ly filed their

Proposed Recommended Orders (PROs) by the deadline of November 2,

2012. To the extent the PROs are based on the evidentiary record

made at the final hearing, they have been considered in the

preparation of this Recommended Order. 4/

FINDING S OF FACT

Admitted Facts Per Joint Pre - Hearing Stipulation

1. The Department advertised for proposals and bids for the

Project under procurement contract number E5R63.

2. Commercial was a bidder on the Department ' s contract

E5R63 for the Project.

3. Comm ercial reviewed the Department ' s advertisement for

proposals and bids for the Project.

4. The Project consists of replacing the existing Daytona

Avenue Bridge (Bridge No.: 795502).

5. The Project was advertised as a low bid design - build

Project.

6. Comm ercial did not file a challenge to the

specifications for the Project.

7. The advertisement for the Project included pre -

qualification requirements for design professionals and pre -

qualification work class requirements for the contractor.

8. The adverti sement for the Project included requirements

for design professional services 8.1 and 8.2, Florida

Administrative Code Rule Chapter 14 - 75. 5/

9. The bids and technical proposals for the Project were

due at the Department ' s District 5 offices by no later th an

2:30 p.m., on June 18, 2012.

10. Commercial submitted a technical proposal for the

Project in response to the advertisement for procurement E5R63.

11. Commercial submitted a bid price for procurement E5R63.

12. The technical proposal submitted by Com mercial for

procurement E5R63 did not contain a firm or individual

pre - qualified by the Department to perform work types 8.1 and

8.2.

13. District 5 representatives contacted Commercial and

sought to clarify who had been identified in Commercial ' s

technic al proposal to meet the pre - qualification requirements for

work types 8.1 and 8.2.

14. Andrus Gaudet was identified in response to the inquiry

regarding who would satisfy work type 8.1 and 8.2 pre -

qualification requirements.

15. As of June 18, 2012, Andr us Gaudet had not been pre -

qualified by the Department in work types 8.1 and 8.2 under rule

chapter 14 - 75.

16. The Department determined that Commercial was non -

responsive based on its failure to include a firm or an

individual possessing the pre - qualific ation requirements in work

types 8.1 and 8.2 as advertised in the procurement solicitation.

17. The advertisement states on page one that " all

qualification requirements must be met prior to the Response

Deadline. "

18. The Department sent a letter to Com mercial that informs

all responding firms that in order to be considered for the

award, the team must be pre - qualified in the areas in the

advertisement.

19. Commercial could not be considered for award of this

contract since it did not comply with the pr e - qualification

requirements.

Additional Findings of Fact

20. The Department ' s advertisement summarized the key terms

for the Project, which included the following:

NOT TO EXCEED BUDGET AMOUNT OR MAXIMUM

BUDGET AMOUNT OR BUDGET AMOUNT*: $798,000

* Actu al commitment and final execution of

this contract is contingent upon an approved

legislative budget and availability of funds

ESTIMATED CONTRACT TIME: 300 Contract Days

SELECTION PROCEDURE: Low Bid Design - Build

RESPONSE REQUESTED: Fax Or der Form

STIPEND AMOUNT: No Stipend

PREQUALIFICATION REQUIREMENTS:

1) CONTRACTOR - WORK CLASS REQUIREMENTS

Minor Bridges

2) DESIGN - PROFESSIONAL SERVICES WORK TYPE

REQUIREMENTS

Major: 4.1.2 - Minor Bridge Design

Mino r: 3.1 -- Minor Highway Design

4.1.1 -- Miscellaneous Structure

7.1 -- Signing, Pavement Marking

and Channelization

8.1 -- Control Surveying

8.2 -- Design, Right of Way, and

Construct ion Surveying

9.1 -- Soil Exploration

9.2 -- Geotechnical Classification

Lab Testing

9.3 -- Highway Materials Testing

9.4.1 -- Standard Foundation

Studies

TECHNICAL QUESTIONS SHO ULD BE ADDRESSED TO:

http://www2.dot.state.fl.us/construction/bid

questionmain.asp .

21. The selection procedure for a low bid design - build

p roject is that the Department ' s technical review committee

starts with the lowest price bidder and reviews that bid der ' s

technical proposal to determine if it meets the technical

requirements or if it is non - responsive. If the lowest bidder ' s

technical proposal is deemed non - responsive, the technical review

committee proceeds to review the technical proposal of the ne xt

lowest bidder. The technical proposals of other bidders are not

reviewed at all for responsiveness unless and until the committee

deems the lowest bidder ' s proposal non - responsive. The technical

review committee prepares its recommendations as to the

responsiveness of the proposals reviewed and identifies which

bidder, if any, should be deemed the lowest responsive bidder.

The technical review committee recommendations are then submitted

to the selection committee, which makes the final decision that

is posted as the Department ' s intended decision.

22. Commercial submitted the lowest bid for the Project in

the amount of $780,000. Therefore, the technical review

committee began with a review of Commercial ' s technical proposal.

After that review, the technical review committee made the

following recommendation:

The Technical submitted by [Commercial] was

reviewed and is recommended as non -

responsive. [Commercial] did not identify

how the advertised prequalification

requirement on 8.1 - - Control Surveyin g

and 8.2 - - Design, Right of Way, and

Construction Surveying would be met within

their Technical.

23. The technical review committee proceeded to the next

lowest bidder, Gregori, with a bid price of $817,500. Gregori ' s

technical proposal was reviewed and found to meet the technical

requirements for the Project. The technical review committee

recommended that Gregori be deemed the lowest responsive bidder.

24. The decision to award the contract to Gregori was made

by the selection committee, which agreed with the technical

review committee ' s recommendations. Before making that

decision, the selection committee considered whether Gregori ' s

bid price was reasonable. The selection committee made the

judgment that Gregori ' s bid price, which exceeded the eng ineer ' s

estimate used to establish the budget amount by a relatively

small percentage, was reasonable.

25. Funds for contracts must be provided for in the Work

Program. When an RFP is issued, the Department sets aside funds

in the Work Program in the est imated budget amount. Therefore,

in order for the selection committee to award a contract for a

bid price that exceeds the estimated budget amount, the

selection committee must get approval to fund the excess amount

in the Work Program. In this case, the selection committee

obtained approval to add $20,500 -- the amount by which Gregori ' s

bid price exceeded the advertised budget amount -- to the Work

Program.

26. Commercial did not contend or attempt to prove that

Gregori ' s bid price was unreasonable. Inst ead, Commercial ' s

challenge to the intended contract award was that the Department

was required to reject the bid as non - responsive , because the

bid price exceeded what Commercial referred to as the

" advertised not to exceed budget amount. " Thus, Commerci al ' s

challenge hinges on its characterization of the advertisement as

specifying a " not to exceed budget amount. " However, the actual

language in the advertisement was: " NOT TO EXCEED BUDGET AMOUNT

OR MAXIMUM AMOUNT OR BUDGET AMOUNT*: $798,000. " Commer cial was

unable to point to any statute, rule, or RFP specification that

narrowed the quoted language or that required the Department to

deem a proposal non - responsive solely because the bid price is

higher than the advertised budget amount. Without more, the

dollar amount identified in the advertisement cannot be

considered a " not to exceed budget amount. " Instead, the amount

was either a " not to exceed budget amount, " or a " maximum

amount, " or simply a " budget amount. "

27. Commercial unsuccessfully att empted to prove that the

Department ' s prior practice was to declare non - responsive any

bids over the advertised budget amounts. To support its

position, Commercial relied on the Department ' s prior practice

in connection with an earlier solicitation for th e same bridge

replacement project, designated contract no. E5R48 (project

E5R48), which resulted in a Department decision to reject all

bids and re - advertise.

28. The evidence established that the advertisement for

project E5R48 set forth a " NOT TO EXCE ED BUDGET AMOUNT OR

MAXIMUM BUDGET AMOUNT OR BUDGET AMOUNT " of $650,000. The

advertisement specified the same " PREQUALIFICATION REQUIREMENTS "

in the same work type categories as did the advertisement for

the Project at issue here.

29. Potential bidders were given the opportunity to review

the RFP and submit questions to the Department. The questions

and answers were posted. One question/answer provided as

follows:

[Question:] The advertisement makes mention

of a Maximum Budget for the project. The

R FP is silent as to a Maximum Allowable Bid

for the project. Is the budget estimate

provided in the Advertisement a maximum bid

price and will our bid be non - responsive if

it is over that amount?

[Answer:] No.

30. Technical proposals and bids were subm itted by two

bidders in response to the solicitation for project E5R48.

Following the same selection procedure as for the Project at

issue in this case, the technical review committee first

reviewed the technical proposal of the bidder with the lower

bid, which was in the amount of $798,000. The technical review

committee recommended as follows regarding the lower bidder:

The Technical submitted by United

Infrastructure Group was reviewed and is

recommended as non - responsive. United

Infrastructure Group did not identify how

the advertised prequalification requirement

on 9.3 - - Highway Materials Testing would be

met within their Technical.

31. The technical review committee for project E5R48 did

not also recommend that the United Infrastructure Group ' s

pro posal be declared non - responsive for the additional reason

that its bid of $798,000 exceeded the advertised budget amount

of $650,000.

32. The technical review committee for project E5R48 then

considered the other bidder ' s proposal, with a bid price of

$1 ,100,000. However, it did not proceed to review that bidder ' s

technical proposal for compliance with technical requirements,

for the following reason:

The Technical submitted by Superior

Construction Company has not been reviewed.

The bid submitted by Su perior Construction

Company is 69% over the Department ' s

advertised Budget Amount.

The Technical Review Committee recommends

rejecting all bids and readvertising this

project.

33. The selection committee for project E5R48 agreed with

the technical revi ew committee ' s recommendations and made the

decision to reject all bids and re - advertise. The Department ' s

representative at the final hearing, who served on the selection

committees for both bid solicitation rounds for the Daytona

Avenue bridge replaceme nt project , confirmed that the selection

committee ' s decision to reject all bids for project E5R48 was

not based on a determination that the two bids were " non -

responsive " because the bid prices were higher than the

advertised budget amount. Instead, the lower bidder for project

E5R48 was deemed non - responsive for the same reason that

Commercial was deemed non - responsive in this case (non -

compliance with all pre - qualification requirements as of the

response due date); and the only other bidder proposed a p rice

that was found to be unreasonably high.

34. The Department has the discretion to award contracts

when the amounts bid are higher than the advertised budget

amounts, absent an RFP specification to the contrary. In

deciding whether to exercise th at discretion, one factor the

Department considers is the magnitude by which the bid price

exceeds the advertised budget amount. For project E5R48, after

the low bidder was found non - responsive, the only other bid was

so much higher than the advertised bu dget that the Department

reasonably exercised its discretion to reject all bids and

re - advertise.

35. When bids come in much higher than estimated for a

project, the Department will go back to review the engineer ' s

estimate from which the budgeted amount was derived to determine

if something needs to be changed in a re - advertisement, such as

clarification of the project terms, increase in the budget

amount, or both. In this case, the Department clarified the

P roject terms and increased its budget amount in the

re - advertisement of the Project (but not nearly to the level of

the very high bid that the Department refused to consider).

36. The Department ' s exercise of discretion in the prior

solicitation round to not consider a bid exceeding the budgeted

am ount by 69 percent does not dictate that the Department reject

Gregori ' s bid as non - responsive. Instead, the Department ' s

prior practice was shown to be entirely consistent with the

Department ' s exercise of discretion in this case to consider

Gregori ' s bi d that was only three percent higher than the

advertised budget amount.

37. Petitioner failed to prove any Department 's prior

practice of rejecting bids as non - responsive when they exceed

the advertised budget amount. The evidence showed otherwise.

38. The evidence regarding project E5R48 also demonstrated

that the Department ' s prior practice has been to reject proposals

as non - responsive for failure to meet the advertised

pre - qualification requirements as of the response submission

deadline. That pri or practice is consistent with the

Department ' s decision to deem Commercial ' s proposal non -

responsive because the proposal failed to satisfy all of the

advertised pre - qualification requirements as of the response

submission deadline of June 18, 2012.

CONCL USIONS OF LAW

39. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding. §§ 120.569 and 120.57(3), Fla. Stat.

40. Commercial's protest to the Department's proposed

contract award is governed by section 120.57(3)(f), which

provides 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, propos als, 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 stan dard

of proof for such proceedings shall be

whether the proposed agency action was

clearly erroneous, contrary to competition,

arbitrary, or capricious.

41. The court in Colbert v. Dep artment of Health , 890

So. 2d 1165, 1166 (Fla. 1st DCA 2004), defined the clearly

erroneous standard to mean that "the interpretation 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." (Citations

omitted.)

42. An agency action is "contrary to competition" if it

unreasonably interferes with the purposes of competitive

procurement, which has been described in Wester v. Belote , 138

So. 7 21, 723 - 724 (Fla. 1931), as protecting the public against

collusive contracts and to secure fair competition upon equal

terms to all bidders.

43. A capricious action has been defined as an action,

"which is taken without thought or reason or irrationally. "

Agrico Chemical Co. v. Dep't of Envtl . Reg . , 365 So . 2d 759, 763

(Fla. 1st DCA 1978), cert. denied , 376 So. 2d 74 (Fla. 1979).

"An arbitrary decision is one that is not supported by facts or

logic[.]" Id. The inquiry to be made in determining whether an

agency has acted in an arbitrary or capricious manner involves

consideration of "whether the agency: (1) has considered all

relevant factors; (2) has given actual, good faith consideration

to those factors; and (3) has used reason rather than whim to

progress from consideration of these factors to its final

decision." Adam Smith Enter prises v. Dep't of Env t l . Reg . , 553

So. 2d 1260, 1273 (Fla. 1st DCA 1989). The standard has also

been formulated by the court in Dravo Basic Materials Co. v.

Dep't of Tr ansp. , 602 So. 2d 632, 634 n.3 (Fla. 2d DCA 1992) , as

follows: "If an administrative decision is justifiable under any

analysis that a reasonable person would use to reach a decision

of similar importance, it would seem that the decision is neither

arbitr ary nor capricious."

44. Although competitive - procurement protest proceedings

are described in section 120.57(3)(f) as de novo, courts

acknowledge that a different kind of de novo is contemplated than

for other substantial - interest proceedings under sec tion 120.57.

Competitive - procurement protest hearings are a "form of

intra - agency review[,]" in which the object is to evaluate the

action taken by the agency. State Contracting and Eng ' g Corp. v.

Dep't of Transp. , 709 So. 2d 607, 609 (Fla. 1st DCA 1998) .

45. Applying these standards to this case, Commercial has

failed to meet its burden of proving that the Department's

intended contract award to Gregori is clearly erroneous,

arbitrary, capricious, or contrary to competition. Commercial

failed to demons trate that the Department's intended contract

award to Gregori is contrary to any statute, rule, policy, or RFP

specification.

46. Commercial's protest hinges on its erroneous

characterization of the Department's advertisement for the

Project as stating a "not to exceed budget amount." Instead, as

found above, the advertisement set forth an amount that was

described in the alternative as either a "not to exceed budget

amount," or a "maximum amount," or simply a "budget amount."

47. Commercial argued th at the Department had to treat the

budget amount in this RFP the same way it treated the budget

amount in the prior RFP issued for this same project for which

the Department decided not to award a contract. Commercial's

argument is the death knell to its protest. In the course of

that prior solicitation, the Department made clear in responding

to questions by the bidders that the advertised budget amount was

not a maximum amount and that bids exceeding the budgeted amount

would not be disqualified as non - responsive.

48. The Department's witnesses reasonably explained that

while a proposed price exceeding the budgeted amount is not

automatically deemed non - responsive, the Department may conclude

that the degree to which the budgeted amount is exceeded is s o

high that the Department is unwilling to award the contract.

That is what happened in the prior solicitation round for this

Project: the only responsive bidder proposed a price that was

nearly twice as much as the budgeted amount.

49. Contrary to Comm ercial's argument, the Department's

decision challenged here is entirely consistent with its actions

in connection with the prior RFP. Just as the Department

responded to a bidder's question then, the fact that Gregori's

bid price was higher than the budg eted amount did not mean that

Gregori's bid was non - responsive. Instead, it only meant that

the Department would take a closer look at the proposal compared

to its own budget estimate to determine whether the higher price

was reasonable. The Department r easonably exercised its

discretion to determine that Gregori's bid was reasonable, even

though it was higher than the budget amount. Commercial

presented no evidence to suggest that the Department's exercise

of discretion was arbitrary, capricious, clearl y erroneous, or

contrary to competition. Instead, Commercial's sole contention

was that the advertised amount had to be treated as a "not to

exceed" or "maximum" b id amount. This argument is rejected.

50. Commercial admitted that its lower bid could not be

considered because Commercial failed to meet the advertised

pre - qualification requirements in two work - type categories by the

response due date of June 18, 2012. Commercial was on notice

that pre - qualification was required in all advertised work

categ ories by the response due date. The RFP specifications

confirmed that "[p]roposers are required to be pre - qualified in

all work types required for the project. " Commercial did not

challenge this RFP requirement and, thus, cannot challenge the

pre - qualifi cation mandate now. See § 120.57(3)(b) (" With respect

to a protest of the terms, conditions, and specifications

contained in a solicitation, . . . the notice of protest shall be

filed in writing within 72 hours after the posting of the

solicitation. "); ac cord RFP Protest Rights ("any person who is

adversely affected by the specifications contained in this [RFP]

must file a notice of intent to protest in writing within

seventy - two hours of the receipt of this [RFP].").

51. The Department's determination that Commercial's bid

was non - responsive due to its failure to meet the pre -

qualification requirements in all advertised work categories was

not shown to be contrary to any statute, rule, policy, or RFP

specification, nor was it shown to be clearly erroneo us,

arbitrary, capricious, or contrary to competition.

52. The Department's determination that Commercial's bid

was non - responsive was shown to be consistent with the

Department's prior practice. In the prior solicitation round for

the Daytona Avenue b ridge replacement, pro ject E5R48, the

Department determined that another bidder's bid was non -

responsive for the same reason that Commercial's bid was deemed

non - responsive in this case: failure to meet pre - qualification

requirements in all advertised wor k categories.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that a final order be entered by

Respondent, Department of Transportation, dismissing the formal

protest of Petitioner, Commercial Industrial C orporation.

DONE AND ENTERED this 20th day of November , 2012 , in

Tallahassee, Leon County, Florida.

S

ELIZABETH W. MCARTHUR

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee P arkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 20th day of November , 2012 .

ENDNOTE S

1/ All statutory references are to the Flor ida Statutes (2012).

2/ Instead of offering a reason for not timely responding to the

requests for admissions, Mr. Blankenfeld said that Commercial had

no problem with the 19 paragraphs on which admissions were

requested. As explained to Mr. Blankenfeld , these admissions

included the ultimate fact in paragraph 19 that "Commercial could

not be considered for award of this contract since it did not

comply with the pre - qualification requirements." However, the

admissions did not cover the subject of Commer cial's separate

argument that the other two bidders' proposals should have been

deemed non - responsive based on prices exceeding the alleged "not

to exceed budget amount." Therefore, the undersigned explained

that Commercial would be permitted to present e vidence at the

final hearing regarding this part of its challenge, which was not

resolved by the admissions.

3/ The Transcript's exhibit index identifies Exhibits 2 and 6 as

Petitioner's exhibits. While these exhibits were offered by

Petitioner, they w ere marked and received as Respondent's

exhibits.

4/ Petitioner's PRO improperly proposed a finding of fact that

was based on an attached document. The document attached to

Petitioner's PRO was not offered in evidence at the final hearing

and , indeed, was not even in existence as of the final hearing.

As made clear at the conclusion of the hearing, the evidentiary

record was closed, and the undersigned would only consider

proposed findings of fact that had evidentiary support in the

record. See § 120. 57(1)(j), Fla. Stat. (" Findings of fact . . .

shall be based exclusively on the evidence of record[.]").

Therefore, the document attached to Petitioner's PRO has not been

considered and cannot be the basis for any F inding of F act.

5/ Rule chapter 14 - 75 is entitled , "Qualification, Selection, and

Performance Evaluation Requirements for Professional Consultants

to Perform Work for [the Department]." The work - type categories

are codified in rule 14 - 75.0 0 3.

COPIES FURNISHED:

Ananth Prasad, Secretary

Dep artment of Transportation

Haydon Burns Building, Mail Station 57

605 Suwannee Street

Tallahassee, Florida 32399 - 0450

Gerald B. Curington, General Counsel

Department of Transportation

Haydon Burns Building, Mail Station 58

605 Suwannee Street

Tallahassee , Florida 32399 - 0450

Deanna Hurt, Clerk of Agency Proceedings

Department of Transportation

Haydon Burns Building, Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399 - 0450

C. Denise Johnson, Esquire

Department of Transportation

Haydon Burns B uilding, Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399

Jay Tyler Blankenfeld

Commercial Industrial Corp oration

11810 Northwest 115th Avenue

Reddick, Florida 32686

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to sub mit 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.