13-000685BID James Hinson Electrical Contracting Company, Inc. vs. Department Of Transportation Status: Closed Recommended Order on Friday, June 21, 2013.

Summary: DOT's decision not to extend the bid deadline for the project at issue was clearly erroneous, contrary to competition, arbitrary and capricious.

Case No. 13-0685BID

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAMES HINSON ELECTRICAL

CONTRACTING COMPANY, INC.,

RECOMMENDED ORDER

Petitioner,

vs.

DEPARTMENT OF TRANSPORTATION,

Respondent.

/

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

on May 1, 2013, in Jacksonville, Florida, before W. David

Watkins, the duly-designated Administrative Law Judge of the

Division of Administrative Hearings.

APPEARANCES

For Petitioner: E. Lanny Russell, Esquire

Jonathan Huffman, Esquire

Smith, Hulsey & Busey

225 Water Street, Suite 1800

Jacksonville, Florida 32202

For Respondent: C. Denise Johnson, Esquire

Department of Transportation

605 Suwannee Street, M.S. 58

Haydon Burns Building

Tallahassee, Florida 32399

STATEMENT OF THE ISSUE

Whether the Department of Transportation's (DOT) intended

decision to award contract T2442 for the Intelligent

Transportation System improvements (Project) and other

incidental construction on State Road 9A, in Duval County, to

American Lighting & Signalization, Inc. (ALS), is contrary to

the agency's governing statutes, the agency's rules or policies,

or the bid or proposal specifications.

PRELIMINARY STATEMENT

On October 24, 2012, DOT posted notice of its intent to

award the contract for the Project to ALS. Thereafter, Hinson

Electrical Contracting Company, Inc. (Hinson Electrical) timely

filed a notice of protest and formal protest (with the required

bond) of DOT's intended action. DOT referred this matter to the

Division of Administrative Hearings (DOAH). ALS did not

petition to intervene in this proceeding and is not a party

hereto.

This matter was initially assigned to Administrative Law

Judge Jessica Varn, who issued a Notice of Hearing and an Order

of Pre-hearing Instructions on February 26, 2013. On

February 25, 2013, a scheduling teleconference was convened

wherein the 30-day requirement to conduct a hearing was waived

by the parties. On March 19, 2013, the Department filed an

Unopposed Motion for Continuance, which was granted by Order

dated March 22, 2013. The matter was transferred to the

undersigned on March 26, 2013, and on April 3, 2013, an Order

re-scheduling the hearing was entered scheduling the final

hearing for May 1, 2013, in Jacksonville, Florida.

The final hearing was held as scheduled. The 135-page

Transcript was filed with DOAH on May 21, 2013, and Petitioner

and Respondent timely filed their proposed findings of fact and

conclusions of law on May 31, 2013. Prior to the hearing, the

parties filed a Joint Pre-Hearing Stipulation with extensive and

detailed admitted facts. The evidence presented at the hearing

and the submissions from the parties have been carefully

considered in the preparation of this Recommended Order.

At the hearing, Hinson Electrical presented the testimony

of its president and principal, J. Daniel Hinson, as well as its

project manager, Chris Ginn. DOT presented the testimony of

Juanita Moore, the manager of the Contracts Administration

Office within DOT. A transcript of the deposition of Colette

Jackson (a DOT employee who did not testify at the hearing) was

received into evidence at the hearing. Hinson Electrical's

Exhibits numbered 1-8, 11-24, and 30 were received into evidence

without objection, and Hinson Electrical's Exhibits numbered 9,

10, and 29 were received into evidence over DOT's objection.

DOT's Exhibits numbered 1-6, were all received into evidence

without objection.

FINDINGS OF FACT

Based upon the demeanor and credibility of the witnesses

and other evidence presented at the final hearing and on the

entire record of this proceeding, the following findings of fact

are made: 1 /

1. The contract being protested is T2442 for the

Intelligent Transportation System improvements and other

incidental construction for State Road 9A, in Duval County. The

Department advertised the bid solicitation notice for the

Project on July 27, 2012.

2. The bid solicitation notice included a list of all of

the pay items and estimated quantities for the project. DOT

also posted all of the pay items online in two formats. One

format was a downloadable file that could be used in software,

and the other was similar to an Excel spreadsheet file. These

formats could be used to formulate a bid. Changes to pay items

are issued in an Addendum, and while two addendums were issued

for this project, neither affected the pay items for the

project.

3. For several years, DOT has mandated that prospective

bidders use an automated, online bidding process, by which

prospective bidders request bid documents and submit their bids

using the DOT's website.

4. The letting date established as the deadline for

submission of bids via electronic submission was September 26,

2012, and was set forth in the bid solicitation notice. In

order to be considered, all bids were due by 10:30 a.m. on that

day. Letting is the term used to indicate the date that the

bids are due.

5. The bid solicitation notice included a requirement that

bidders for the Project attend a mandatory pre-bid meeting to be

held on August 20, 2012.

6. Hinson Electrical is a licensed electrical contracting

company based in Jacksonville, Florida. The company has

completed "hundreds" of projects for the State of Florida,

including DOT, and is pre-qualified to bid on jobs with DOT.

7. The mandatory pre-bid meeting was held on August 20,

2012, as scheduled. G. Christopher Ginn, Project Manager for

Hinson Electrical, attended the pre-bid meeting, signed his

name, and identified the company he represented (Hinson

Electrical) on the sign-in sheet.

8. Section 337.168(2), Florida Statutes, provides:

(2) A document revealing the identity

of persons who have requested or obtained

bid packages, plans, or specifications

pertaining to any project to be let by the

department is confidential and exempt from

the provisions of section 119.07 (1) for the

period which begins two working days prior

to the deadline for obtaining bid packages,

plans, or specifications and ends with the

letting of the bid.

9. As a business strategy, Hinson Electrical routinely

orders bid documents within the two-day blackout period mandated

by section 337.168(2), during which time DOT is required to take

down its list of contractors who have requested bid documents

concerning a particular project. Ordering bid documents within

the blackout period prevents competitors from discovering

whether Hinson Electrical is bidding for a particular project.

10. The blackout period for the Project began at 5:00 p.m.

on Friday, September 21, 2012.

11. The deadline to order the bid documents for the

Project was 10:30 a.m. on September 25, 2012. There is no

requirement that contractors request bid documents prior to the

pre-bid meeting (if one is required for a particular project),

or at any time prior to the order deadline, which is 24 hours

before the bid deadline. DOT acknowledged at hearing that it is

Hinson Electrical's prerogative to order the bid documents

within the blackout period during which the identities of

bidders are kept confidential.

12. Hinson Electrical ordered the bid documents for the

Project at approximately 1:00 p.m. on September 24, 2012. The

computerized system immediately provided access for Hinson

Electrical to download the plans and specifications for the

project at issue. However, four minutes later, at approximately

1:04 p.m., Hinson Electrical simultaneously received an email

with a "Prequalification Failure Notice," and a second email

stating that the bid document request for the Project was

"pending." The Prequalification Failure Notice indicated that

the bid document was not provided because Hinson Electrical had

not attended the required pre-bid meeting for the Project. 2 /

Failure to attend the pre-bid meeting was the only basis stated

in the Prequalification Failure Notice for DOT refusing to

provide the bid document.

13. As noted, Hinson Electrical's representative did in

fact attend the pre-bid meeting for the Project, and he signed

the sign-in sheet, attesting to his presence at the meeting.

The sign-in sheet had been transmitted to DOT on August 21,

2012, the day after the pre-bid meeting was held. Thus, DOT's

basis for sending Hinson Electrical a Prequalification Failure

Notice was in error.

14. The Prequalification Failure Notice also stated,

"[Y]ou will be contacted by email or phone as soon as possible

during business hours regarding requirements for obtaining the

bid documents." However, DOT did not send an email or call

Hinson Electrical after 1:04 p.m. on September 24, 2012, or at

any time on September 25, 2012.

15. Phillip Davis, a DOT employee in the Contracts

Administration Office, was "blind copied" on the Hinson

Electrical Prequalification Failure Notice email, with a "high

importance" tag. Mr. Davis' job responsibilities include

following up on these types of notices, though he is not

supervised to ensure this occurs. Mr. Davis' responsibilities

also include checking sign-in sheets from pre-bid meetings to

authorize release of bid documents to contractors. DOT admits

that Mr. Davis did not read the Hinson Electrical

Prequalification Failure Notice; did not check the sign-in sheet

from the pre-bid meeting; and made no attempt to contact Hinson

Electrical, as promised in the notice.

16. From September 20 through 25, 2012, Daniel Hinson and

Chris Ginn obtained quotes from suppliers and subcontractors to

prepare a bid for the Project. Hinson Electrical also secured a

bid bond for the Project, and had everything necessary to submit

a bid, except for the actual bid document.

17. In the afternoon or early evening of September 25,

2012, Daniel Hinson sat down at his computer with the price

lists and quotes he had obtained to prepare a bid for the

Project. It was then that Mr. Hinson discovered DOT had not

granted him access to the bid document for this Project, and

that the failure notice he had received pertained to this

Project, and was in error. Hinson Electrical was bidding on a

total of eight contracts at that time, some of which did not

have a mandatory pre-bid meeting.

18. As of the close of business on September 25, 2012, DOT

had still not made any effort to contact Hinson Electrical, as

promised in the failure notice.

19. At 7:55 p.m. on September 25, 2012, Hinson Electrical

sent an email to the Contracts Administration general email

address, stating that Hinson Electrical's representative had

attended the pre-bid meeting and asking why Hinson Electrical

was being excluded from the bidding.

20. Shortly after 7:00 a.m. the following morning

(September 26, 2012, the bid deadline), Chris Ginn called the

project inspector, Thomas Woods of HNTB Corporation, on Hinson

Electrical's behalf, and requested that HNTB confirm that Hinson

Electrical's representative had attended the pre-bid meeting.

21. At 7:32 a.m. that same morning, Mr. Woods sent an

email to Juanita Moore notifying her of the error and confirming

that Hinson Electrical's representative had indeed attended the

pre-bid meeting.

22. The Contracts Administration Office opened at 8:00

a.m. on the day of the bidding deadline. Within 36 minutes (by

8:36 a.m.), Ms. Moore reviewed Mr. Woods' email; checked the

sign-in sheet; and instructed a subordinate, Colette Jackson, to

send the bid document to Hinson Electrical. Ms. Jackson

immediately sent the bid document to Hinson Electrical under a

cover email.

23. Ms. Moore testified that Phillip Davis could have

easily gone through these same steps on September 24, 2012 (two

days before the bid deadline), and timely transmitted the bid

document to Hinson Electrical, if he had only read the

Prequalification Failure Notice on which he was copied.

Ms. Moore agreed that 24 hours would have been sufficient time

for Mr. Davis to check the sign-in sheet and release the bid

document.

24. When DOT finally provided the bid document to Hinson

Electrical, it was 1 hour, 54 minutes before the bid submission

deadline.

25. At 8:40 a.m. on September 26, 2012, (four minutes

after receiving the bid document) Daniel Hinson spoke by

telephone with Colette Jackson about needing additional time to

complete Hinson Electrical's electronic bid submission. Colette

Jackson testified that one of her responsibilities at DOT is to

move bid deadlines, and that she can do so quickly upon

receiving instructions from Ms. Moore to do so. However,

Ms. Jackson did not have authority to provide the requested

relief, so she transferred the call to Ms. Moore.

26. Upon being transferred to Ms. Moore, Mr. Hinson asked

for additional time to complete the Hinson Electrical bid for

the Project. That request was refused by Ms. Moore. In her

view, the fact that the pay items and estimated quantities for

the project had previously been provided should have enabled

Hinson Electrical to submit a bid within the two hours remaining

prior to the deadline. In addition, Ms. Moore felt Hinson

Electrical should have taken it upon itself to contact DOT

immediately upon receiving the disqualification notification if

it believed it had complied with all prerequisites.

27. Contrary to Ms. Moore's opinion, Mr. Hinson testified

that it would have taken him about four hours to go through the

various steps to submit Hinson Electrical's online bid for the

Project. DOT's position that Hinson Electrical could have

completed and submitted its bid with less than two hours

remaining is rejected as not credible. However, even if that

were possible, it would have put Hinson Electrical at a

disadvantage because every other bidder was able to download the

bid document immediately upon request after the pre-bid meeting.

28. Daniel Hinson has submitted bids for hundreds of DOT

projects (including "dozens" using the current online system)

and he reasonably believed there was insufficient time remaining

before the deadline to prepare a competent bid and ensure its

accuracy. Mr. Hinson's testimony regarding the amount of time

necessary to prepare a complete and competent bid for the

Project is more credible than the testimony of Ms. Moore.

Considering the potential cost to Hinson Electrical of a mistake

made in haste, it was entirely reasonable for Hinson Electrical

to decline to submit a bid, and instead request a bid extension.

Likewise, it was unreasonable for DOT to decline the extension

request, given that it was DOT's mistake that necessitated the

extension.

29. DOT extends bid deadlines dozens of times each year,

for various reasons, including computer issues, mistakes in the

bid documents, or bad weather. Ms. Moore testified about bid

deadlines that had been moved, three or four times in some

cases, for reasons including computer glitches, website issues,

and "technical problems." In one such instance, contractors

could not obtain their bid documents on the Monday before a

Wednesday letting (which is what happened to Hinson Electrical

in this case), and DOT postponed the bid deadline. In another

instance, a bid deadline was postponed for a third time "because

the vendors couldn't download what they needed to bid." And in

another example, the bid deadline was postponed with notice

provided just 92 minutes before the deadline due to "server

issues at the Department." In this final example, once the

malfunction was identified, DOT promptly sent the notice of

postponement to the bidders and later completed the other

necessary steps to move the bid deadline.

30. A postponement notice can be sent to bidders in less

than ten minutes after the decision to postpone a bid is made.

All other steps required to move a bid deadline are typically

accomplished by DOT personnel in about an hour.

31. DOT knows of no harm that would have come to the other

bidders had DOT agreed to move the bid deadline to allow Hinson

sufficient time to submit its online bid.

32. At 9:22 a.m. on September 26, 2012, Daniel Hinson sent

an email to Colette Jackson in response to her email, stating

there was insufficient time for Hinson Electrical to prepare its

bid for the Project and that a protest would be filed if DOT

posted its intent to award the contract to one of the other

bidders.

33. The letting of the project occurred as scheduled at

10:30 a.m. on September 26, 2012. At approximately 4:00 p.m. on

October 24, 2012, DOT posted notice of its intent to award the

contract to ALS. This was the second posting date for the

September 26, 2012 letting date. Thereafter, Hinson Electrical

timely served its notice of protest, formal protest pleading,

and the required bond.

34. The advertisement for the Project reads, in part,

"Bidders are hereby notified that all bids on any of the

following projects are likely to be rejected if the lowest

responsive bid received exceeds the engineer's estimate by more

than ten percent (10%)." DOT does reject all bids for being too

high in some cases. The bid submitted by ALS for the Project

exceeded the proposal budget estimate of $4,183,958 by 19.9

percent (ALS' winning bid was $5,016,501.73).

35. The Contract Award Committee (Committee) is the DOT

body with discretion to reject all bids for a project. However,

Ms. Moore never informed the Committee of Hinson Electrical's

situation so that it could determine whether the Project should

be rebid. Even after posting notice of intent to award the

Project to ALS, DOT retained discretion to reject all bids, but

Ms. Moore was unaware of that discretion and never discussed the

matter with the Committee.

36. Hinson Electrical credibly established that it would

have submitted a bid of $4,973,361.99 for the Project had DOT

provided the online bid document when Hinson Electrical first

requested it. Thus, Hinson Electrical would have been the low

bidder, and presumably awarded the contract.

37. DOT had at least three opportunities to correct its

mistake and allow Hinson Electrical an opportunity to bid. DOT

could have (l) extended the bid deadline, as it has in many

other cases; (2) rejected all bids and rebid the Project, before

posting notice of intent to award the contract; or (3) rejected

all bids even after posting notice of intent.

38. In their Prehearing Stipulation, the parties

stipulated to the following:

DOT has no policy statements, handbook

provisions, internal memoranda, guidelines,

or other documents regarding the following

subjects:

a. How a failure to timely transmit

bid documents in response to a prospective

bidder's request, whether due to a

transmission error or otherwise, should be

handled or what relief may be provided to

the bidder;

b. Acceptable grounds for extending a

bid submission deadline;

c. How an erroneous determination that

a prospective bidder for a project was not

qualified to bid should be handled, either

before or after the bid deadline has

expired;

d. Relief that can or should be

provided to a prospective bidder who was

denied the opportunity to bid for a project

due, at least in part, to some irregularity

in the bidding process;

e. Relief that can or should be

provided to a prospective bidder who was

denied the opportunity to bid for a project

due, at least in part, to some error made by

FDOT (including its computer system); and

f. How to handle a situation in which

all received bids exceed the budget for the

project by more than 10%.

(Prehearing Stipulation, pgs. 11-12)

CONCLUSIONS OF LAW

39. DOAH has jurisdiction over the subject matter of this

proceeding and of the parties hereto pursuant to sections

120.569, 120.57(1) and 120.57(3), Florida Statutes.

40. Hinson Electrical has standing to file this protest by

virtue of being a prospective bidder who was wrongfully excluded

from the bidding process. See Advocacy Ctr. For Pers. with

Disabilities, Inc. v. Dep't of Child. & Fam. Servs. , 721 So. 2d

753, 755 (Fla. 1st DCA 1998) (citing and quoting Westinghouse

Elec. Corp. v. Jacksonville Transp. Auth. , 491 So. 2d 1238, 1241

(Fla. 1st DCA 1986), and Fairbanks, Inc. v. Dep't of Transp. ,

635 So. 2d 58, 59 (Fla. 1st DCA 1994)). The evidence shows that

Hinson Electrical would have had the low bid and would likely

have been awarded the Project, so Hinson Electrical has the

requisite substantial interest in this matter. "Standing will

inhere in a person who at least has some potential stake in the

contract to be awarded." Id. Hinson Electrical satisfies this

test.

41. Petitioner, as the party challenging the proposed

agency action, has the burden of proof in this proceeding and

must show that the agency's proposed action is contrary to the

agency's governing statutes, rules or policies, or the bid or

proposal specifications. A de novo hearing was conducted to

evaluate the action taken by the agency. § 120.57(3)(f), Fla.

Stat.; State Contracting and Eng’g Corp. v. Dep’t of Transp. ,

709 So. 2d 607 (Fla. 1st DCA 1998). The administrative law

judge may receive evidence, as with any hearing held pursuant to

section 120.57(1), but the purpose of the proceeding is to

evaluate the action taken by the agency based on the information

available to the agency at the time it took the action. Id.

42. Agencies enjoy wide discretion when it comes to

soliciting and accepting proposals, and an agency's decision,

when based upon an honest exercise of such discretion, will not

be set aside even where it may appear erroneous or if reasonable

persons may disagree. Baxter's Asphalt and Concrete, Inc. v.

Dep’t of Transp. , 475 So. 2d 1284, 1287 (Fla. 1st DCA 1985);

Capeletti Brothers, Inc. v. State, Dep’t of Gen. Servs. , 432

So. 2d 1359, 1363 (Fla. 1st DCA 1983). Section 120.57(3)(f)

establishes the standard of proof as whether the proposed action

was clearly erroneous, contrary to competition, arbitrary or

capricious. 3 /

43. A decision is considered to be clearly erroneous when,

although there is evidence to support it, after review of the

entire record the tribunal is left with the definite and firm

conviction that a mistake has been committed. United States v.

U.S. Gypsum Co. , 333 U.S. 354, 395 (1948). An agency action is

capricious if the agency takes the action without thought or

reason or irrationally. Agency action is arbitrary if is not

supported by facts or logic. See Agrico Chemical Co. v. State

Dep’t of Envtl. Reg. , 365 So. 2d 759, 763 (Fla. 1st DCA 1978).

An agency decision is contrary to competition if it unreasonably

interferes with the objectives of competitive bidding. See

Wester v. Belote , 103 Fla. 976, 138 So. 721, 723-24 (1931).

44. By erroneously rejecting Hinson Electric's timely

request for the bid document, and then refusing its reasonable

request for a bid extension, DOT actions are clearly contrary to

competition.

The bid procedure was fashioned to

discourage discriminatory governmental

awards and to assure the procurement of the

best value in exchange for public funds.

When the procedure is not followed, those

objectives are not achieved.

Courtenay v. Dep’t of HRS , 581 So. 2d 621, 623 (Fla. 5th DCA

1991). The purpose of the bidding process is settled in the

law:

[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

at public expense; to close all avenues to

favoritism and fraud in its various forms;

to secure the best values for the county at

the lowest possible expense; and to afford

an equal advantage to all desiring to do

business with the county, by affording an

opportunity for an exact comparison of bids.

Wester v. Belote

, 103 Fla. 976, 981, 138 So. 721, 723-24 (1931);

see also Harris v. Sch. Bd. of Duval Cnty. , 921 So. 2d

725 (Fla. 1st DCA 2006); Dep’t of Lottery v. GTech Corp. ,

816 So. 2d 648, 652 (Fla. 1st DCA 2001); Aurora Pump v. Goulds

Pumps, Inc. , 424 So. 2d 70, 75 (Fla. 1st DCA 1982); Harry

Pepper & Assocs., Inc. v. City of Cape Coral , 352 So. 2d

1190, 1192 (Fla. 2d DCA 1977); Wood-Hopkins Contracting Co. v.

Roger J. Au & Son, Inc. , 354 So. 2d 446 (Fla. 1st DCA

1978).

45. Without question, bid procedures exist to ensure the

equal treatment of all potential bidders. When, as here, a

bidder who attended the pre-bid meeting and met all other

prerequisites was not provided with critical documentation that

the other bidders received, "the bidders were not treated

equally and fairly" and "the entire purpose of the competitive

bidding process [is] subverted." Opus South Corp. v. Bd. of

Regents , Case No. 93-2740BID (Fla. DOAH July 29, 1993; Fla. Bd.

of Regents Sept. 21, 1993). And when an agency's mistake denies

a contractor the opportunity to compete for a contract award,

relief should be provided to the contractor. In Asphalt Pavers,

Inc. v. Fla. Dep't of Transp. , 602 So. 2d 558, 562 (Fla. 1st DCA

1992), the hearing officer held it was clearly arbitrary to

reject a bid for failure to include a form that the agency

itself lost, and that result was affirmed on appeal.

46. There is no question that Hinson Electrical was

treated differently than the other bidders for the Project.

Hinson Electrical was the only bidder that received a

Prequalification Failure Notice with the erroneous statement

that it had failed to attend the mandatory pre-bid meeting.

Hinson Electrical is also the only bidder that was not able to

download the bid document promptly upon request. This unequal

treatment of bidders is contrary to competition for the Project.

47. DOT responds that Hinson Electrical should have

identified DOT's error sooner, but there is no dispute that

Hinson Electrical timely satisfied every prerequisite for DOT to

deliver the requested bid package. Nor is there any dispute

that DOT (in its Prequalification Failure Notice) committed to

follow up "as soon as possible" to get the bid document to

Hinson Electrical. Bidders are entitled to rely upon the DOT to

timely provide bid documents in accordance with the DOT's

procedures. See Bell Atlantic Bus. Sys. Servs., Inc. v. Fla.

Dep't of Labor & Emp. Sec. , 677 So. 2d 989, 991 (Fla. 1st DCA

1996) (holding that bidders were entitled to rely upon the

Department's commitment to provide a notice of bid posting by

facsimile and were not required to make telephone calls or

personal visits to obtain the notice the Department was supposed

to provide by facsimile). Hinson Electrical took appropriate

action as soon as it became aware of DOT's error.

48. DOT also argues that most contractors request bid

documents either before or shortly after the pre-bid meeting.

However, DOT candidly admits this is not required and that it

was Hinson Electrical's prerogative to order the bid documents

during the blackout period provided by 337.168(2), which statute

is intended to foster competition. Any actions or procedures of

the DOT that impede the protections afforded by that statute are

improper. Capeletti Bros., Inc. v. Dep't of Transp. , 499 So. 2d

855, 858 (Fla. 1st DCA 1986) ("The exemptions in section 337.168

were enacted after the Sunshine Law and constitute the later,

more specific expression of legislative will and must,

therefore, be given effect.").

49. The absence of regulations, policies, or even

guidelines to govern the decision whether to postpone a bid

deadline or reject all bids under circumstances like this, is

problematic. Important decisions should not be made "on the

personal whim of a bureaucrat." See SAS Fountains at Pershing

Park. Ltd. v. Fla. Hous. Fin. Corp. , Case No. 10-8219 (Fla. DOAH

Sept. 30, 2010; Fla. Hous. Fin. Corp. June 24, 2011). DOT is

entrusted with millions of dollars in taxpayer funding. The

public trust demands appropriate policies, procedures, and

decision-making to ensure procedural and substantive fairness in

the bid procurement process and the use of this funding.

50. DOT has discretion to extend bid deadlines, and in

fact does so regularly for various reasons. Given the facts of

this case, DOT should have provided some reasonable

accommodation to a bidder who was denied sufficient opportunity

to bid for the project due to DOT's error or an irregularity in

the bid procurement process that affected the bidder. DOT has

done so in many other cases, and should have done so here.

51. On the facts found herein, DOT's unequal treatment of

Hinson Electrical was contrary to competition. Moreover, on

these facts, DOT's refusal to provide any accommodation for

Hinson Electrical, once DOT's mistake was brought to light prior

to the bid deadline, in the absence of standards and policies,

and without discussion with upper-management at DOT, was both

arbitrary and capricious.

52. Petitioner urges a recommendation from the undersigned

that DOT enter a Final Order directing that all bids for the

Project be rejected and that the Project be rebid. However,

administrative law judges are without the authority to direct

how an agency must respond once a finding is made that the

procurement process violated applicable law. Dep’t of Transp.

v. Groves-Watkins Constructors , 530 So. 2d 912 (Fla. 1988);

see also , Moore v. State, Dep’t of HRS , 596 So. 2d 759 (Fla. 1st

DCA 1992); Courtenay v. Dep’t of HRS , 581 So. 621 (Fla. 5th DCA

1991).

53. Under the facts of this case, DOT's decision not to

extend the bid deadline for the Project was clearly erroneous,

contrary to competition, arbitrary and capricious, in violation

of section 120.57(3)(f).

RECOMMENDATION

Upon consideration of the facts found and conclusions of

law reached, it is

RECOMMENDED: That a final order be entered by the Department of

Transportation that rescinds the Notice of Intent to award

Contract T2442 to American Lighting & Signalization, Inc.

DONE AND ENTERED this 21st day of June, 2013, in

Tallahassee, Leon County, Florida.

S

W. DAVID WATKINS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 21st day of June, 2013.

ENDNOTES

1/ The parties are in agreement as to the timing and sequence of

virtually all of the relevant events. See Prehearing

Stipulation, pgs. 10-12.

2/ other bidders for the Project also received a All

Prequalification Failure Notice stating that the bid documents

could not be issued at the time of request because attendance at

the pre-bid conference was a prerequisite. However, since all

other bidders requested the bid documents prior to the date of

the pre-bid conference the Prequalification Failure Notices sent

to them was appropriate, whereas the Prequalification Failure

Notice sent to Hinson Electrical was not.

3/ Section 120.57(3)(f) provides in relevant 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. In any bid-

protest proceeding contesting an intended

agency action to reject all bids, proposals,

or replies, the standard of review by an

administrative law judge shall be whether

the agency’s intended action is illegal,

arbitrary, dishonest, or fraudulent.

:

C. Denise Johnson, Esquire COPIES FURNISHED

Department of Transportation

Haydon Burns Building, Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399

E. Lanny Russell, Esquire

Smith Hulsey and Busey

Suite 1800

225 Water Street

Jacksonville, Florida 32202

Trish Parsons, Clerk of Agency Proceedings

Department of Transportation

Haydon Burns Building, Mail Station 58

605 Suwannee Street

T allahassee, Florida 32399

Gerald B. Curington, General Counsel

Department of Transportation

Haydon Burns Building, Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399

Ananth Prasad, Secretary

Department of Transportation

Haydon Burns Building, Mail Station 57

605 Suwannee Street

Tallahassee, Florida 32399

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.