21-000950BID Heavy Civil, Inc. vs. Florida Department Of Transportation Status: Closed Recommended Order on Thursday, July 29, 2021.

Summary: Proposal non-responsive where Petitioner failed to send paper bid bond to the location listed in the solicitation notice by the deadline.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

H EAVY C IVIL , I NC . ,

Petitioner ,

vs. Case No. 21 - 0950BID

F LORIDA D EPARTMENT OF

T RANSPORTATION ,

Respondent .

/

R ECOMME NDED O RDER

On April 16 and May 4, 2021 , Administrative Law Judge Hetal Desai, of

the Division of Administrative Hearings (DOAH), conducted a final hearing

in this matter via Zoom .

A PPEARANCES

For Petitioner: Megan S. Reynolds, Esq uire

William Robe rt Vezina, III, Esquire

Vezina, Lawrence & Piscitelli, P.A.

413 East Park Avenue

Tallahassee, Florida 32301

Joseph W. Lawrence, Esquire

Vezina, Lawrence & Piscitelli, P.A.

350 East Las Olas Boulevard, Suite 1130

Fort Lauderdale, Florida 33301

For Respondent: George S pears Reynolds, IV, Esq uire

Douglas D ell Dolan, Esq uire

David Tropin, Esq uire

Florida Department of Transportation

605 Suwannee Street, M ail Stop 58

Tallahassee, Florid a 32399 - 045 0

S TATEMENT OF T HE I SSUE S

Whether the Florida Department of Transportation ' s determination that

Heavy Civil , Inc. , was a nonresponsive bidder was contrary to the agency ' s

governing statutes, rules, policies , or the solicitation specifications ; and , if so,

whether the award was clearly erroneous, contrary to competition, arbitrary,

or capricious.

P RELIMINARY S TATEMENT

Respondent, Florida Department of Transportation (Department or

FDOT), posted an advertisement for an Invitation to Bid (ITB) f or Contract

number T4557 (Notice) . On December 1 6, 2020, the Department issued a

Notice of Intent to award the subject contract to Russell Engineering, Inc.

(Russell Engineering ).

Petitioner, Heavy Civil , Inc. (Heavy Civil), timely filed its Notice of

Pro test on December 3, 2020. On December 11, 2020 , Heavy Civil timely filed

its Formal W ritten P rotest (protest) with the Department. On March 16,

2021, the Department forwarded Heavy Civil ' s protest to DOAH for

assignment to an Administrative Law Judge (ALJ) to conduct a c hapter 120

evidentiary hearing.

A telephonic scheduling conference was held on March 19, 2021 , via Zoom.

Thereafter, the matter was set for a final hearing. The Department filed a

Motion to Relinquish Jurisdiction on April 13, 2021, and Hea vy Civil filed its

opposition to that motion on April 15, 2021. The parties presented argument

on the first day of the final hearing, and the motion was denied for reasons

stated on the record.

The Department filed a Second Motion to Relinquish Jurisdict ion on

April 28, 2021 (after the first day of the final hearing , but before the second

day). In response, Heavy Civil filed a R esponse in Opposition to FDOT's

Second Motion to Relinquish a nd a Motion for Official Recognition on May 3,

2021. The parties pr esented argument on the Department's S econd M otion to

Relinquish Jurisdiction on the second day of the final hearing, and it was

denied for reasons stated on the record. The Motion for Official Recognition

was also denied for reasons stated on the record.

The parties submitted a Joint Pre - Hearing Stipulation (Stipulation) and

j oint e xhibits on April 14, 2021. In th e Stipulation, the parties agreed to 45

facts that would not require proof at the hearing. Those stipulated facts are

incorporated where approp riate in this Recommended Order.

At the final hearing, Heavy Civil presented the testimony of Rudolph

" Rudy " Polselli, Tiffany Kester, Warren Alter, Darryle Ward,

Maurice Pompey, and Cassandra Anderson. The Department presented the

testimony of Jennifer "Heaven" Burnsed, Mirza Rezazadeh, Renasia Scott,

Phillip Davis, and Alan Autry. Joint Exhibits 1 through 1 6 were admitted

into evidence. Heavy Civil ' s Exhibits P 5, P 9, P 10, P 17 through P 19, P 24, P 25,

P 27, P 29, P 30, and P 32 were admitted into evidence. The Department ' s

Exhibits R 1, R 4 through R 6, R 10, R 12, R 20 through R 24, and R 30 were

admitted into evidence.

The Transcript of the hearing was filed with DOAH on May 18, 2021 . The

undersigned granted the parties additional time to file proposed

recommended o rders (PROs) as requested by a Joint Motion for Extension of

Time to Submit PROs and the Department's Unopposed Motion for Extension

of Time to Submit PROs. 1 Both parties timely filed their PROs on June 18,

1 By jointly requesting and then agreeing to an extension, the parties waived the

requirement in section 120.57(3)(e), Florida Statutes (2020), for entry of a recom mended

order within 30 days of the filing of the transcript. Fla. Admin. Code R. 28 - 106.216(2).

2021, and both have been duly considered in the p reparation of this

Recommended Order.

All references to the Florida Statutes and Florida Administrative Code are

to the 2020 versions.

F INDINGS OF F ACT

P ARTIES

1 . Heavy Civil is a civil construction firm that primarily contracts with

public entities for projects involving roads, underground utilities, site

development, and/or placement of asphalt or concrete. It regularly submits

bids to FDOT and has been awarded FDOT bids.

2 . Mr. Polselli is Heavy Civil's Operation Manager and handles the day - to -

day o perations. During the time relevant to these proceedings he was

responsible for estimating and bidding for ITBs , and overseeing the

construction projects awarded to Heavy Civil.

3 . Tiffany Kester was Heavy Civil's Office Manager and worked for

Mr. Polsell i. There is no dispute that Mr. Polselli delegated the submission of

the documentation at issue in this proceeding to Ms. Kester.

4. The Department is an executive agency of the State of Florida

responsible for coordinating the planning of a safe, viable, and balanced state

transportation system serving all regions of Florida. § 334.044(1), Fla. Stat .

5 . Pursuant to section 334.046(2) , Florida Statutes, FDOT is tasked with

providing a safe statewide transportation system that ensures the mobility of

peopl e and goods, enhances economic prosperity, and preserves the quality of

Florida ' s environment and communities. To achieve these tasks, the

Department h as the authority to enter contracts for the construction and

maintenance of all roads under its jurisdict ion. § 337.11(1), Fla. Stat.

6. The Contracts Administration Office (C AO ) oversees this aspect of

FDOT's responsibilities. Relevant to these proceedings, t he CAO handles the

prequalification process for road and bridge contractors seeking to bid on

contra cts with price s exceed ing $250,000.

7 . For purposes of these proceedings, the parties have stipulated that the

terms " Department " and " Contracts Administration Office " do not have the

same meaning and are not used interchangeably to refer to the same entit y .

The parties have stipulated that the term " Department " means the C entral

O ffice located at 605 Suwannee Street, Tallahassee, F lorida 32399 ; and t he

term " Contracts Administration Office " means a specific office housed within

C entral O ffice and located s pecifically at 605 Suwannee Street, Mail Stop

(MS) 55, Tallahassee, F lorida 32399.

T HE N OTICE AND I NSTRUCTIONS FOR THE I NVITATION TO B ID

8 . On September 25, 2020, FDOT issued the Notice for an ITB for

Contract T4557 , which involved a construction project f or road improvements

in Palm Beach Count y. Specifically, the work to be performed was along Hall

Boulevard, Temple Boulevard, and 140th Avenue , and include d road

widening, milling, and resurfacing; concrete, pavers, and asphalt; signing and

pavement markin gs; monitoring existing structures; irrigation sleeves; and

utility adjustments.

9 . Bid proposals for Contract T4557 w ere required to be submitted

electronically by a time and date certain as provided in the Notice . As part of

the ir proposal s , bidders were required to submit a proposal guaranty,

commonly referred to as a "bid bond." 2 This is statutorily required for all

Department ITB responses over $150,000. § 337.17, Fla. Stat.

10 . Regarding the "bid bond," the Notice state d :

For bids over $150,000, the standard proposal

guaranty of 5% of the bid will be required, unless

otherwise stipulated in the proposal advertisement.

È Proposal Guaranty shall substantially conform

to DOT Form 375 - 020 - 09 furnished with the

2 The parties stipulated that, as used in this protest proceeding, the terms " proposal

guaranty " and " bid bond " have the same meaning and may be used interchan geably to refer

to the same item.

Proposal. Surety2000 or SurePath electronic

P roposal Guaranty submittal may be used in

conjunction with Bid Express internet bid

submittal. .. . Paper Proposal Guaranty will also be

accepted for bids submitted through Bid Express

provided they are received prior to the deadline for

receiving bids, by the location(s) identified in this

Bid Solicitation Notice . If an electronic proposal

guaranty is not being submitted, the bidder must

submit an original proposal guaranty. (A fax or a

copy sent as an attachment will not be accepted).

(italics added).

11 . In summary, t he Notice required the proposal guaranty to be

submitted either (1) electronically through the form and website indicated; or

(2) by a paper original delivered to the location identified in the Notice bid on

or before the proposal deadline. N either a fax ed copy of the paper bid bond

n or a copy sent as an email attachment would be accepted.

12 . Additionally, Specification 2 - 7 of the Department ' s " Standard

Specifications for Road and Bridge Construction " provides:

2 - 7 Guaranty to Accompany Prop osals.

The Department will not consider any Proposal

unless accompanied by a Proposal Guaranty of the

character and amount indicated in the

Advertisement, and unless made payable to the

Florida Department of Transportation.

13 . Heavy Civil bid $590,894. 30 on C ontract T4557, and thus it was

required to submit the appropriate bid bond either electronically or by paper

according to the terms of the Notice. At issue in these proceedings is whether

Heavy Civil submitted its paper proposal guaranty so that it was received

" prior to the deadline for receiving bids, by the location identified in this Bid

Solicitation Notice ." For the reasons below, the undersigned finds Heavy

Civil's proposal did not comply with this requirement.

14 . If a bidder were to read the Notice, it would see that FDOT identified

the f ollowing location on the very top of the first page :

15 . Additionally, the Notice had at least six references to the CAO

website, http://www.fdot.gov/contracts . If a bidder were to read the Notice

and click on this link from the Notice, it would see the following information:

See Florida Department of Transportation, Contracts Administration webpage

at http://www.fdot.gov/contracts (last visited July 13, 20 21).

16 . According to the original Notice, the bid and the bid bond were due no

later than 10:30 a.m., on October 28, 2020. FDOT issued two addendums for

Contract T4557 , extendin g the final submittal date to 10:30 a.m. on

November 18, 2020.

H EAVY C IVIL ' S S UBMISSION

17. The parties stipulated to most of the facts regarding Heavy Civil's

submission of its proposal to the CAO. Mr. Polselli wa s primarily responsible

for submitting Heavy Civil ' s proposals in response to ITBs .

18 . In this case, Mr. Polselli s ubmitted Heavy Civil ' s electronic bid

proposal for C ontract T4557 through the Bid Express link at 9:16 a.m. on

November 18 , 2020. The proposal indicated that Heavy Civil separately

submitt ed a paper proposal guaranty , but did not indicate where the paper

p roposal was submitted, to whom it was submitted, or the date that it was

submitted.

19 . Approximately, three weeks b efore electronically submitting the actual

bid proposal, Mr. Polselli called Ms. Kester to let her know a paper bid bond

would be arriving at Heavy Civil ' s office and that she should send the bid

bond to the Department in Tallahassee. Ms. Kester received the paper bid

bond. 3

20 . Mr. Polselli did not provide Ms. Kester with an address for mailing the

bid bond. He did not provide her with the N otice. Ms. Kester did review pages

29 and 30 of the Notice. These pages, however, describe the specifications of

the proposed project. There is no reference to "bid bond" on these pages, nor

do they include a location or mailing address. Instead, page 29 s tates, "Please

read the full advertisement."

21. Ms. Kester did not review the full advertisement. No one at Heavy

Civil refer red to the Notice or click ed on any of the links provided in the

Notice to determine where to send the paper bid bond.

22. Ms. Ke ster was familiar with the CAO and had corresponded via email

and telephone with CAO staff. For example, on November 5, 2019,

Jennifer Burnsed, sent an email to Mr. Polselli and Ms. Kester regarding the

execution of another contract ( Contract T1766 ) . Ms. B urnsed ' s email

signature block states the following in large font:

3 As addressed during the hearing and in the Department's PRO, the bid bond notary

certificate has the wrong date . T he date the bid bond was notarized is immaterial to the

issues in these proceedings.

Jennifer (Heaven) Burnsed

FDOT, Contracts Administration Office

605 Suwannee Street, Mail Station 55

Tallahassee, Fl 32399 850 - 414 - 4027

[e-mail]

2 3 . Similar ly, Renasia Scott with the CAO also corresponded through

email with Ms. Kester and Mr. Polselli to facilitate the award and execution

of a contract . Ms. Scott ' s email signature block reads :

Renasia Scott

Contracts Administration Office, MS - 55

Florida Depar tment of Transportation

(850) 414 - 4015

(850) 414 - 4947 - Fax

[e-mail]

2 4 . Ms. Kester did not refer to the Notice or the addresses on the

signature blocks of the CAO staff when submitting the paper bid bond for

Contract T4557 . Rather, Ms. Kester "g oogled " (ran a term through the Google

internet search engine) " DOT Tallahassee " and came up with the FDOT

C entral O ffice building's address: 605 Suwannee Street, Tallahassee, FL

32399. She used this address to fill out the Federal Express pac kage slip as

illustrated below :

2 5 . As is apparent from the label above, t he Federal Express package

containing Heavy CivilÔs bid bond did not include a recipient ' s name n or did it

contain the M ail S top number for the CAO . It did not have the "MS 55"

de signation listed on the Notice and on t he CAO website referred to in the

N otice.

2 6 . On October 22, 2020, Federal Express picked up the package prepared

by Ms. Kester containing Heavy Civil's bid bond from Heavy Civil's office in

Pompano Beach, Florida.

2 7. Neither Ms. Kester nor Mr. Polselli took any steps to verify that the

paper bid bond was received by the CAO. It is unclear if Mr. Polselli knew or

should have known that Ms. Kester had sent the bid bond in an envelope that

did not contain the "MS 55" d esignation on the label.

T HE M AIL R OOM

2 8 . The Department's mailroom is located in the Central Office building

on Suwannee Street in Tallahassee, Florida. It receives between 250 and

350 pieces of mail and packages per day.

2 9 . It is the mailroom staff's dut y to deliver mail and packages to the

40 different offices in the Department's Suwannee Street building. Each

FDOT office has a Mail Stop number indicated by "MS xx". The mail staff is

not trained in contracts nor do they receive training in identifying bid bonds.

30 . The Federal Express package arrived at the Department building in

Tallahassee at approximately 11:06 a.m. on October 27, 2020. On this date,

Heavy Civil had yet to submit its bid proposal for Contract T4557 .

Additionally, t he Federal Expre ss package was not specifically addressed to

the CAO and did not include the M ail S top number for the C AO .

3 1 . The testimony at the hearing established that i f the Federal Express

label had a reference to the CAO , a M ail S top number , or the name of a CAO

e mployee, the mailroom staff would have known what to do with the package

and would have delivered it to the CAO.

3 2 . H owever, because the package was not addressed to anyone in

particular, the Department's mail room staff had to open the Federal Express

pa ckage and determine to what office in the Department it should be

delivered .

3 3 . Because of the stay - home order in place for COVID - 19, o n October 27,

2020, there was limited staff in the Department's building on Suwannee

Street. According to the testimony , only a quarter of the Department's staff

w ere working on - site , with the rest presumably working remotely.

3 4 . The Federal Express package indicates it was accepted and signed for

by "M. Bryan" on October 27, 2020. The testimony at the hearing establishe d

that no employee in the Department's mailroom could be identified as

"M. Bryan."

3 5 . Regardless, Darryl e Ward, a senior mail clerk at FDOT, eventually

received Heavy Civil's Federal Express on October 27, 2020. Because he did

not have the authority to op en it , Mr. Ward took the package to a supervisor,

Maurice Pompey.

36. Mr. Pompey opened the Federal Express package. Because it did not

have a cover letter, was not addressed to a specific person, was not addressed

to a specific FDOT office , and did not ha ve a n "MS" number , he looked at the

document contained in the package and determined it was a bond.

3 7 . Mr. Pompey believed the document in the Federal Express package

was a bond for a contract award and did not realize it was a proposal

guaranty . Based o n his belief it was a bond for an already awarded contract,

he determined it should go to the Department's Procurement Office.

T HE P ROCUREMENT O FFICE

3 8 . The Procurement Office procures road and bridge construction

materials and services, and other produc ts or services related to the

maintenance of roads, bridges , or other transportation facilities, as well as

supplies and services that support the day - to - day operations of the agency.

3 9 . The mailroom staff delivered Heavy Civil ' s Federal Express package t o

the Department ' s Procurement Office on October 27, 2020, at approximately

11:40 a.m. The mailroom staff logged the information from the Federal

Express envelope and where it was delivered into the Department's mail

tracking system.

40 . At the time (agai n because of the COVID - 19 pandemic ), most of the

Procurement Office employees were teleworking. 4 Vincent Moore, a

purchasing agent who had been working for the Procurement Office for less

than two months, signed for Heavy Civil's Federal Express package.

M r. Moore's no rmal job duties included handling purchase requisitions

through "My Florida Marketplace," but a s the only one not working remotely,

on October 27, 2020, he was also responsible for receiving the mail for the

Procurement Office.

41 . Mr. Moore received the Federal Express envelope. He had never seen a

document like the paper bid bond in the Federal Express package and

candidly testified that he had no idea what it was.

42 . Mr. Moore called a staff member who had 16 years of experience with

the Procurement Office, Cassandra Anderson. He emailed a copy of the

Federal Express package and the bid bond to her as they were speaking on

the phone. She noticed the Federal Express label was not addressed to a

specific person or office.

43 . Regarding the document inside the package, Ms. Anderson had

received similar forms in the past from vendors (not bidders) who were

required to submit a bond to the Procurement Office and simply used the

wrong form. The Procurement Office accept ed vendor and contract bo nds as

long as the y substantially compl ied with the Procurement Office's

requirements even if they were not on the right form . Based on her

experience, she believed the document was from a vendor and was intended

for the Procurement Office.

44. Ms. Anderso n advised Mr. Moore to keep Heavy Civil's Federal

Express package because she believed a P rocurement Office employee who

was waiting for the bond would ask Mr. Moore about it since he was

4 Normally, had ther e not been a public health pandemic, the handling of mail within the

Procurement Office would have been the job of Kelly Walls. Ms. Walls, however, was not in

the office on October 27, 2020.

accepting the mail. This was reasonable, especially since Heavy Civi l had

been a vendor with the Department on other construction contracts .

45. Again, i f the Heavy Civil Federal Express envelope had mentioned the

CAO name, a M ail S top number , or the name of an employee, Mr. Moore and

Ms. Anderson would have known what to do with the package.

46 . Ms. Anderson was correct that eventually someone would ask about

the document in the Federal Express envelope , but mistaken that it would be

someone from the Procurement Office. Until December 3, 2020, t he bid bond

sent by Heavy C ivil in the Federal Express package remained in the

Procurement Office .

T HE CAO

47. The CAO received Heavy Civil ' s electronic bid proposal o n or before

10:30 a.m. on November 18, 2020. The proposal did not contain an electronic

bid bond but did indicate th at Heavy Civil was utilizing the paper bid bond

method.

48 . A bidder not submitting a bid bond is relatively infrequent but does

happen. Of the 150 to 200 ITBs handled annually by the CAO, approximately

six of the proposals fail to submit a bid bond. Ac cording to the testimony at

the hearing, t his could be because the bidder failed to follow up or because it

was unable to obtain a bond from a surety. In these situations, where a

proposal is not accompanied by a bid bond, the proposal is deemed

unresponsi ve.

49 . O n December 1, 2020, a s noticed in the last addendum for Contract

T4557 , the Department held its T echnical Review Committee (TRC) meeting .

On December 2, 2020, the Department held its C ontracts Award Committee

(CAC) meeting . Both meetings were con ducted via an internet platform that

allowed participation via computer, tablet, smartphone, or telephone. The

meetings were open to the public and the dates of the meetings and

information on how to attend were posted on the CAO ' s website.

Bidders and m e mbers of the public ha d the right and the opportunity to

speak at both meetings.

50 . On December 1, 2020, the TRC determined that there were eight

bidders for Contract T4557. It voted to determine Heavy Civil's proposal

nonresponsive "due to not submittin g a bid bond."

51 . Heavy Civil did not attend the TRC meeting .

52 . On December 2, 2020, the CAC convened to award Contract T4557. It

concurred with the TRC's determination that Heavy Civil's proposal was

nonresponsive. It awarded the contract to Russell E ngineering, who had

submitted a proposal cost of $645,875.25.

53 . Heavy Civil did not attend the CAC meeting.

54 . On December 2, 2020, the Department posted notice of its intent to

award C ontract T4557 to Russell Engineering , finding it the lowest

respon sive bidder .

55 . Had Heavy Civil attended either meeting, it could have informed the

committee members that it had sent a paper bid bond and that there had

been some kind of mistake. At that point, CAO's employees could have

searched for it and might have either delayed the final determination or

overturned the decisions by the TRC and CAC.

P OST A WARD

56. The next day, on December 3, 2020, Mr. P olselli saw the posted notice

of the CAO's intent to award Contract T4557. He immediately telephoned the

CAO an d inquired why Heavy Civil ' s bid was deemed nonresponsive. He

spoke with Mirza Rezazadeh , who told Mr. Polselli that the C AO had not

receive d Heavy Civil ' s proposal guaranty by 10:30 am. on November 18, 2020.

57 . Mr. Polselli i mmediately emailed Mr. Rezaza deh with a copy of its

proposal guaranty and copies of the Federal Express records attached to the

email.

58 . Mr. Rezazadeh began investigating Mr. Polselli's claims, and w ithin

30 minutes the C A O determined that Heavy Civil ' s proposal guaranty had

been delivered by Federal Express to the mailroom on October 27, 2020.

59 . The parties stipulated that o ther th an the fact the proposal guaranty

was not received by the CAO on or before 10:30 a.m. on November 18, 2020,

Heavy Civil ' s proposal guaranty me t all s o licitation requirements in the

Notice and all legal requirements . The parties have also stipulated that the

Department does not contend that Heavy Civil ' s bid (excluding the proposal

guaranty) was nonresponsive .

U LTIMATE F INDING S OF F ACT

60 . T o be conside red responsive, the paper bid proposal guaranty

submitted for Contract T4557 must have been received by the CAO at 605

Suwannee Street, MS 55, Tallahassee, Florida 32399, on or before 10:30 a.m.

on November 18, 2020. This is based on section 337.17, Florid a Statutes; the

Notice and the ITB specifications; the Department's 2020 Standard

Specifications for Road and Bridge C onstruction ; and the CAO website

referenced in the Notice.

61 . It was insufficient to send the paper bid bond without a reference to

the C AO or "MS 55" and, instead, simply send it to the Department at 605

Suwannee Street in Tallahassee, Florida.

62 . The CAO did not receive Heavy Civil's paper bid bond on or before

10:30 a.m. on November 18, 2020. This was caused in part by Heavy Civil 's

fa ilure to review or follow the instructions in the Notice.

63 . Heavy Civil's bid bond was nonresponsive.

64 . Russell Engineering was the lowest responsive bidder for Contract

T4557.

65 . The Department's decision to award Contract T4557 to Russell

Engineeri ng was not clearly erroneous, contrary to competition, or arbitrary

or capricious.

C ONCLUSIONS OF L AW

66 . DOAH has jurisdiction over the subject matter and the parties to this

competitive procurement protest pursuant to sections 120.569, 120.57(1), and

12 0.57(3), Florida Statutes.

67 . Section 120.57(3)(f) provides that in a competitive procurement

protest:

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 poli cies, 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.

68. In other words, because Heavy Civil challenges t he Department's

decision s to find its proposal non responsive and award Contract T4557 to

Russell Engineering , it has the burden of proof. See State Contracting &

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

Heavy Civil must sus tain this burden of proof by a preponderance of the

evidence . See Dep't of Transp. v. J.W.C. Co., Inc. , 396 So. 2d 778, 787 (Fla. 1st

DCA 1981).

C LEARLY E RRONEOUS , C ONTRARY TO C OMPETITION , A RBITRARY , OR C APRICIOUS

69 . Heavy Civil does not argue the deci sion to deem it nonresponsive was

contrary to the Department's governing statute s and rules. Rather, t he

ultimate issue is whether the CAO's determination of Heavy Civil's proposal

as non responsive because the CAO did not have the paper bid bond by the

des ignated time and date was clearly erroneous, contrary to competition ,

arbitrary, or capricious.

70 . " C learly erroneous " has been defined as follows:

A finding of fact is clearly erroneous when,

although there is evidence to support such finding,

the revie wing court upon reviewing the entire

evidence is left with the definite and firm

conviction that a mistake has been committed. This

standard plainly does not entitle a reviewing court

to reverse the finding of the trier of fact simply

because it is convinc ed that it would have decided

the case differently. Such a mistake will be found to

have occurred where findings are not supported by

substantial evidence, are contrary to the clear

weight of the evidence, or are based on an

erroneous view of the law. Simi larly, it has been

held that a finding is clearly erroneous where it

bears no rational relationship to the supporting

evidentiary data, where it is based on a mistake as

to the effect of the evidence, or where, although

there is evidence which if credible would be

substantial, the force and effect of the testimony

considered as a whole convinces the court that the

finding is so against the great preponderance of the

credible testimony that it does not reflect or

represent the truth and right of the case.

D orsey v. State , 868 So. 2d 1192, 1209 n.16 (Fla. 2003).

71 . As explained above, the evidence at the hearing established that the

paper bid bond submitted by Heavy Civil was not addressed to the location in

the Notice or referenced on the CAO's website. Whi le Department employees

could have investigated and may have found the proper office to where the

bid bond should have been delivered , it was not their responsibility. Rather it

was Heavy's Civil's responsibility to address the package to the CAO at the

lo cation identified in the Notice. Instead, as Heavy Civil admits , it did not

consult the Notice before submitting the paper bid bond , it failed to i ndicat e

the recipient's name or a M ail S top on the label, and it did not include a cover

letter indicating w here the bid bond was to be delivered . The undersigned

cannot find that the decision to deem Heavy Civil nonresponsive ( because the

CAO did not have the bid bond when it opened the proposals ) was clearly

erroneous.

72 . To establish that the Department's a ction of deeming it non responsive

was " contrary to competition, " Heavy Civil must establish that those actions,

at a minimum: (a) create the appearance of and opportunity for favoritism;

(b) erode public confidence that contracts are awarded equitably and

economically; (c) cause the procurement process to be genuinely unfair or

unreasonably exclusive; or (d) are unethical, dishonest, illegal, or fraudulent .

See § 287.001, Fla. Stat.; and Harry Pepper & Assoc. v. City of Cape Coral ,

352 So. 2d 1190, 1192 (Fl a. 2d DCA 1977).

73 . In this case, the Department cannot be said to have favor ed Russell

Engineering , the intended awardee, by failing to ensure that Heavy Civil had

complied with the requirements of the solicit ation. On the contrary, if the

Department had followed up with a bidder who had submitted an incomplete

bid package so that it would not be deemed non responsive, it would appear to

have been favoring an otherwise nonresponsive bidder. This would not only

erode the public's confidence that the award w as equitable and the process

fair , but would reward bidders who ignore directions. It also would encourage

such bidders to rely on Department staff to fix their mistakes. As such, the

Department's actions cannot be said to be contrary to competition.

74 . An arbitrary decision is one that is not supported by facts or logic or is

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

(Fla. 1st DCA 1978). Under the arbitrary or capricious standard, " an agency

is to be subjected only t o the most rudimentary command of r ationality. "

Adam Smith Enters., Inc. v. State Dep't of Envtl. Reg. , 553 So. 2d 1260 , 1273

(Fla. 1st DCA 1989); see also Dravo Basic Materials Co., Inc. v. State Dep't of

Transp. , 602 So. 2d 632, 634 n.3 (Fla. 2d DCA 1992 ) ( " 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 arbitrary nor capricious. " ).

75 . Florida's First District Court of Appeal articulated the " capricious "

standard as follows:

A capricious action is one which is taken without

thought or reason or irrationally. An arbitrary

decision is one not supported by facts or logic, or

despotic. Administrative discretion must be

reaso ned and based upon competent substantial

evidence. Competent substantial evidence has been

described as such evidence as a reasonable person

would accept as adequate to support a conclusion.

Agrico Chemical Co. , 365 So. 2d at 763.

76 . Heavy Civil argues i t was the Department's staff's failure to properly

investigate the Federal Express package and document inside, and the CAO's

failure to look for a paper bid bond that was mentioned but never received,

which led to the decision to deem it nonresponsive. Se e Pet. PRO ¶ 34. (" For

FDOT to conclude without further investigation that Heavy Civil made this

representation while knowing that it never obtained or submitted a bid bond

was arbitrary, capricious, and plainly unreasonable. "). It also argues that its

fai lure to timely get the bid bond to the CAO did not give it any competitive

advantage over other bidders and did not deprive FDOT of an assurance that

the contract w ould be properly performed .

77 . A s an initial matter, bids must strictly adhere to the mater ial

specifications as set forth by the agency soliciting the proposals. System Dev .

Corp. v. Dep ' t of Health & Rehab. Servs . , 423 So. 2d 433 (Fla. 1st DCA 1982) .

" Responsive bid ," " responsive proposal, " or " responsive reply " means a bid,

submitted by a res ponsive and responsible vendor , which " conforms in all

material respects to the solicitation. " § 287.012(26), Fla. Stat. A bid is

nonresponsive if it materially deviates from the solicitation specifications in

any respect. Tropabest Foods, Inc. v. Dep ' t of Gen. Servs. , 493 So. 2d 50, 52

(Fla. 1st DCA 1986).

78 . Heavy Civil essentially argues it should not be held to the same

standard as other bidders, that it should not have to read (or follow

directions), and if mistakes were made , it was not its fault. T hese arguments

are rejected . Heavy Civil utterly ignores its own failure to read or follow the

directions and specifications in the Notice. It cites no statutory language or

provisions i n the Notice that imposes a duty on FD OT employees to figure out

where to properly deliver packages that are not properly addressed , or on the

CAO to track down required documents missing from bid packages. Instead,

the Notice placed the responsibility squarely on bidders to comply with the

requirement to deliver a bid bond either electronically or by submitting it in

paper form to the location and by the date identified in the Notice. Heavy

Civil alone is responsible for failing to follow the Notice instructions.

79 . In support of its argument that the Department is to blam e, Heavy

Civil relies on two federal cases that are inapplicable to this case. See Pet.

PRO ¶ 34 (citing Level 3 Commcn ' s, LLC v. U .S. , 129 Fed. Cl. 487, 503 Ï 05

(2016) and ; BCPeabody Constr. Servs., Inc. v. U .S. , 112 Fed. Cl. 502, 512

(2013) . In Level 3 Co mmunications, the losing bidder failed to submit a n

informational form on a specific type of computer file , as a provision of the

solicitation required. The court categorized the information as minor or

clerical because t he same information was available e lsewhere. It also relied

on a federal regulation, FAR 15.306, which states that agenc ies can request a

clarification to " clarify certain aspects of proposals È or to resolve minor or

clerical errors. " Id. at 504 - 04. The federal court held that while the la nguage

of FAR 15.306 was permissively worded, an agency's decision to not seek

clarifications " can constitute an abuse of discretion under certain

circumstances. " Id. at 504.

80 . In BCPeabody , the agency deemed the disappointed bidder ' s proposal

unaccepta ble because BCPeabody included two identical project information

sheets for one subcontractor, rather than distinct sheets for each of its two

subcontractors , as required by the solicitation. Id. at 505 - 06. Once again ,

applying FAR 15.306, the court found that the federal department had an

obligation to contact the bidder to resolve the minor error. Id . at 513.

81 . Not only is FAR 15.306 inapplicable to this case, but the facts of Heavy

Civil's cases are also distinguishable in that the failure to timely su bmit the

bid bond is not a clerical or typographical error. Rather, it is a statutory

requirement. See § 377.17, Fla. Stat.

82 . Heavy Civil next cites to Cady Studios, LLC v. Seminole C ounty

Sch ool B oard , Case No. 18 - 0134BID (Fla. DOAH Jan. 23, 2019; SCSB April 2,

2019). See Pet. PRO ¶ 34. In Cady Studios , the disappointed bidder

submitted one original, one copy, and ten USB copies of their bid to the

agency, in accordance with the Request for Proposals. Id . ¶ 10. However,

some of the USB drives were blank and one of the evaluators chose not to

review a different USB drive or the paper copy of the bid and deem ed Cady

Studio ' s bid nonresponsive because of the blank USB drive. Id . ¶¶ 21 - 25.

Judge Bruce Culpepper found this determination arbitrary and capricio us,

especially since Cady Studios received good evaluations from the other

evaluators. Id . ¶ 81.

83 . Unlike the situation in this proceeding , the evaluators in Cady Studios

had access to all the necessary information. The only error in Cady Studios

was th at some of the USB driv es were blank, not that the information had

not been provided. Here, the CAO did not receive the paper bid bond at the

location and by the deadline in the Notice .

84 . Most importantly, in the cases above, the disappointed bidders all read

the bid solicitation requirements and attempted to comply with them. Here,

Heavy Civil admits it did not refer to the Notice or bid documents when

submitting the paper bid bond, and that it did not participate in the

committee meetings. Ultimately, i t failed to follow the directions and comply

with a material requirement of the solicitation.

85 . The CAO had no knowledge as to whether Heavy Civil had sent the

paper bid bond (or that it was sitting in the Procurement Office) until after

the award had a lready been made. As such, the CAO's (or the Department's)

failure to investigate and determine if Heavy Civil had actually submitted its

paper bid bond when the CAO did not receive it was not an arbitrary or

capricious act.

86 As explained in Dravo Basic Materials Co. , 602 So. 2d at 632 n.3 , " [i] f

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 arbitrary nor capricious. " See also Sci. Games,

Inc. v. Dittler Bros., Inc. , 586 So. 2d 1128, 1131 (Fla. 1st DCA 1991) ( " a public

body has wide discretion in the bidding process and its decision, when based

on an honest exercise of the discretion, should not be overturned even if it

ma y appear erroneous and even if reasonable persons may disagree. " )

(q uotations omitted ). Although one could find that Heavy Civil's failure to

properly address the Federal Express label was exacerbated by the

Department's mailroom and Procurement Office's f ailure to further

investigate , b ased on the unique facts of this case, it was reasonable for the

CAO to deem H eavy Civil's proposal nonresponsive.

O THER I SSUES

87 . Additionally, it is helpful to dispel some of the other arguments raised

by the parties d uring these proceedings . First, Heavy Civil argues the Notice

and ITB instruction contained latent ambiguities as to where the paper bid

bond should be sent. It is immaterial what information was in the Notice or

other bid specifications because there is n o dispute that Ms. Kester did not

review the instructions in the Notice or rely on them in sending the paper bid

bond.

88 . Moreover, as determined above there were no ambiguities. The only

location address on the Notice included the "MS 55" notation, as di d the

webpage that was linked at least six times in the Notice. Additionally,

Ms. Kester's past interaction with the CAO and CAO staff should have put

her on notice that the bid proposal and other documents should be addressed

to the CAO or include the M ai l S top designation.

89 . Second, in its PRO, Heavy Civil seems to have abandoned the "lost

bid" argument presented in its Formal Written Protest that

Florida law holds that any alleged omission of a

required document that actually was timely

submitted is a technical omission if the document

existed at the time of the bid submission and

opening and that has no impact on competitive

bidding, all that is required is for the bidder to

establish a prima facie case that the omitted

document was submitted. See Ove rstreet Paving Co.

v. State, Dep't of Transp. , 608 So. 2d 851, 853 (Fla.

2d DCA 1992).

Petitioner's Formal Written Protest, p p . 4 and 5 . (also citing to Asphalt

Pavers, Inc. v. State, Dep ' t of Transp . , 602 So. 2d 558 (Fla. 1st DCA 1992) ). It

is addressed here as a matter of completeness.

90. In Overstreet Paving Company , the bid package had been submitted to

the correct office, but when evaluated, Overstreet's package was missing a

" disadvantaged business enterprise utilization " form . As explained by the

court, this form was technical and the department had discretion to consider

Overstreet's proposal:

Because the bids were not immediately inventoried

and were then moved from place to place, it is

possible that: 1) the bidder failed to include the

documen t in the sealed bid, or 2) somehow the

document was misplaced after the bid was opened.

As this case and Asphalt Paver demonstrate,

determining which option is the truth in an

administrative hearing is a difficult, if not

impossible, process. Neither the b idder nor DOT

has much ability to prove directly one option or the

other.

Overstreet Paving Co. , 608 So. 2d at 853. Unlike the issue in Overstreet , here

there is no question that the paper bid bond was not sent to the place

indicated in the solicitation n otice.

91 . Similarly, i n Asphalt Pavers , the hearing officer expressly found that

the bid proposal package submitted by the challenging bidder did include the

documentation at the time it was opened by department staff, but that it was

somehow detached an d lost after opening. Id. at 560. There was no admission

in Overstreet and Asphalt that the petitioners failed to read the solicitation

notice and instructions . On the contrary, they argued they had followed

instructions and claimed to have sent the docume ntation as required in the

solicitation instructions. Here, Heavy Civil did not read the instructions and

the required documentation was not received by the CAO, whose staff was

responsible for opening the bid packages.

92. T his case is distinguishable in that none of the above - cited cases

involved a statutorily required bid bond. A bond is not a clerical form . Also,

while the bond may have reached the Department and Department

employees may have misdirected it to the wrong office because of the lack of

in formation on the label , i t cannot be said that the misdirection was the fault

of the Department. Rather, this proceeding could have been avoided had

Heavy Civil reviewed the Notice before sending the paper bid bond and

addressed it to the location indicate d in the Notice. Ultimately, t he Notice

provided Heavy Civil with direction s and the other bidders managed to direct

their bonds correctly. Unlike the petitioners in the cases cited above, and the

other bidders on Contract T4557 , Heavy Civil did not do its due diligence in

sending its paper bid bond to the Department.

93 . Third, the Department argues that even if the paper bid bond was

considered timely submitted (which it was not), the paper bid bond itself is

faulty because it is post - dated and seems to be improperly notarized. It is

immaterial what was in the paper bid bond because, as the Department has

vigorously argued and the undersigned has found , the CAO never received

the paper bid bond or reviewed it before making its award.

R ECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

R ECOMMENDED that the Department of Transportation enter a final order:

(a) rejecting Heavy Civil, Inc.'s proposal as nonresponsive; and (b) awarding

Contract T4557 to Russell Engineering Inc ., as the lowest responsive bid der .

D ONE A ND E NTERED this 29th day of July , 2021 , in Tallahassee, Leon

County, Florida.

S

H ETAL D ESAI

Administrative Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(85 0) 488 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 29th day of July , 2021 .

C OPIES F URNISHED :

Megan S. Reynolds, Esquire George Spears Reynolds, Esquire

Vezina Lawrence & Piscitelli, P.A. Department of Transportation

413 East Park Avenue 605 Suwannee Street , M ail S top 58

Tallahassee, Florida 3230 1 Tallahassee, Florida 32399

William Robert Vezina, III, Esquire Douglas Dell Dolan, Esquire

Vezina, Lawrence and Piscitelli, P.A. Florida Department of Transportation

413 East Park Avenue 605 Suwannee Street , M ai l S top 58

Tallahassee, Florida 32301 Tallahassee, Florida 32399 - 045 0

David Tropin, Esquire Joseph W. Lawrence, Esquire

Department of Transportation Vezina Lawrence & Piscitelli, P.A.

605 Suwannee Street, M ail S top 58 350 East Las Olas Boulevard , Suite 1130

Tallahassee, Florida 32399 Fort Lauderdale, Florida 33301

Amber Greene, Clerk of Agency Kevin J. Thibault, P.E., Secretary

Proceedings Department of Transportation

Department of Transportation Haydon Burns Building

Haydon Burns Building 605 Suwannee Street, M ail S top 57

605 Suwannee Street, M ail Stop 58 Tallahassee, Florida 32399 - 0450

Tallahassee, Florida 32399 - 0450

Sean Gellis, General Counsel

Department of Transportation

Haydon Burns Building

605 Suwannee Street, M ail S to p 58

Tallahassee, Florida 32399 - 0450

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

All parties have the right to submit written exceptions within 1 0 days from

the date of this Recommended Order. Any exceptions to this Reco mmended

Order should be filed with the agency that will issue the Final Order in this

case.