21-001728BID American Lighting And Signalization, Llc vs. Florida Department Of Transportation Status: Closed Recommended Order on Monday, September 27, 2021.

Summary: ALS failed to establish that the Department acted contrary to its governing statutes, rules or policies, or the solicitation. Recommend award to Intervenor.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

A MERICAN L IGHTING A ND

S IGNALIZATION , LLC ,

Petitioner ,

vs. Case No. 21 - 1728BID

F LORIDA D EPARTMENT OF

T RANSPORTATION ,

Respondent,

and

D B I S ERVICES , LLC ,

Intervenor .

/

R ECOMMENDED O RDER

Pursuant to notice, a final hearing in this case was conducted before

Administrative Law Judge Mary Li Creasy of the Division of Administrative

Hearings ( " DOAH " ) , live in Tallaha ssee , Florida, and by Zoom video

teleconference on June 22 and 23, 2021 .

A PPEARANCES

For Petitioner: Karen D. Walker, Esquire

Holland & Knight, LLP

315 South Calhoun Street, Suite 600

Tallahassee, Florida 32301

James Keith Ramsey, Esquire

Ben W. Subin, Esquire

Holland & Knight, LLP

2 00 South Orange Avenue, Suite 2600

Orlando, Florida 32801

For Respondent: Sean W. Gellis, General Counsel

George Spears Reynolds, Esquire

Douglas Dell Dolan, Esquire

Department of Transportation

Haydon Burns Building

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399 - 045 0

For Int er venor: Megan S. Reynolds, Esquire

William Robert Vezina, III, Esquire

Vezina Lawrence & Piscitelli, P.A.

413 East Park Avenue

Tallahassee, Florida 32301

S TATEMENT OF T HE I SSUE S

Whether Respondent ' s, F lorida Department of Transport at ion ( " the

Department " ), decision to award a contract to Intervenor, DBi Services, Inc.

( " DBi " or " Intervenor " ), pursuant to the Bid Solic itation Notice and the

Specifications Package (jointly referred to as " Solicitation " ) for Contract

No. E5X18 (highway lighting maintenance in District Five ) , was contrary to

its governing statutes, rules, or policies , or the solicitation specifications ; an d ,

if so, whether the award was contrary to competition, clearly erroneous,

arbitrary, or capricious.

P RELIMINARY S TATEMENT

On February 23, 2021, the Department issued a Solicitation for the

performance of highway lighting maintenance work in District Fiv e, inclusive

of the counties of Brevard, Flagler, Lake, Marion, Orange, Osceola, Seminole,

Sumter, and Volusia. The Solicitation was issued under Contract No. E5X18

and Financial Project No. 427957 - 1 - 72 - 25. Petitioner, American Lighting and

Signalization, LLC ( " A LS " ) , and DBi submitted bids in response to the

Solicitation. On April 1, 2021, the Department awarded the Contract arising

out of the Solicitation to DBi. ALS timely filed a Notice of Protest, followed by

a Formal Written Protest and Petition for F ormal Administrative Hearing

( " Petition " ) , pursuant to sections 120.569, 120.57(1) and (3), and 337.11,

Florida Statutes , and Florida Administrative Code Chapters 28 - 106, 28 - 110,

and 14 - 91.

On May 28, 2021, the Department referred the Petition to DOAH to

conduct formal administrative proceedings pursuant to chapter 120 . As a

specifically - named entity whose substantial interests were being determined

in the proceeding, DBi became a party by entering an appearance pursuant to

r ule 28 - 106.205(3). On June 11, 2021, A LS filed an Unopposed Motion for

Leave to File Amended Formal Written Protest and Petition for

Administrative Hearing ( " Amended Petition " ). The m otion was granted on

June 14, 2021 , and the Amended Petition was deemed filed.

The final hearing was he ld as scheduled on June 22 and 23, 2021 , with

counsel appearing in person and witnesses appearing both in person and via

Zoom. ALS presented the testimony of Deanna Hutchison, the Department ' s

State Administrator for Maintenance Contracting; Michelle Sloan , District

Procurement Manager for Department District Five; Christine Barone,

Deputy District Maintenance Engineer for Department District Five; Richard

Calledare, Region Manager for A LS ; and Jeffrey Schechtman, Chief

Operating Officer for DBi. ALS also c alled one expert witness, Curtis Falany.

The Department and DBi did not present any witnesses. However, the

parties agreed that the Department and DBi would conduct their cross -

examination at the end of the direct examination of ALS ' witnesses and that

cro ss - examination would not be limited to the scope of direct to avoid calling

witnesses multiple times and in the interest of efficiency.

The parties stipulated to the admission of Joint Exhibits 1 through 8.

ALS ' Exhibits 2, 3, and 9 through 12 were admitt ed into evidence. The

Department ' s Exhibits 10, 12 through 19, and 22 through 25 were admitted

into evidence. DBi ' s Exhibits 1 and 3 through 7 were admitted into evidence.

The three - volume T ranscript of the hearing was filed on August 9, 2021.

The parties timely submitted proposed recommended orders , which were

considered in the drafting of this Recommended Order. All references to the

Florida Statutes refer to the 2020 version , unless otherwise specified.

F INDINGS OF F ACT

The Parties

1. The Department is an executive agency of the s tate 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.

The Department is tasked with providing a statewide transportation system

that ensures the mobility of people and goods, enhances economic prosperity,

and preserves the quality of Florida ' s environment and communities.

§ 334.046(2), Fla. Stat. To that end, the Department has authority to enter

into contra cts for the construction and maintenance of all roads under its

jurisdiction. § 337.11(1), Fla. Stat.

2. DBi is a transportation infrastructure asset operations and

maintenance contractor that provides services primarily to owners of

highway infrastructure , such as the Department, across the country. Most of

the contracts DBi enters are performance - based contracts. DBi has performed

more than 20 maintenance contracts for the Department .

3. ALS is a certified electrical contractor specializing in highway lig hting

maintenance, roadway lighting, and traffic signalization , which previously

performed work for the Department through DBi as its subcontractor on

multiple occasions.

The Solicitation

4. On February 23, 2021, the Department issued a Solicitation for

t he performance of highway lighting maintenance work in District Five.

District Five comprises Brevard, Flagler, Lake, Marion, Orange, Osceola,

Seminole, Sumter, and Volusia c ounties.

5. The Solicitation provided that " [t]he work under this Contract consist s

of maintaining the highway lighting system, including overhead, underdeck

and sign lighting, at various locations throughout District Five. "

6. The Solicitation included two documents: (a) a Bid Solicitation Notice

and (b) a Specifications Package conta ining Special Provisions that are

specific to Contract No. E5X18. By its own terms, the Specifications Package

replaced or added to specifications contained in the Department ' s Standard

Specifications for Road and Bridge Construction, January 2021 edition.

7. To the extent not modified by the Specifications Package, the

definitions supplied in the Standard Specifications apply to terms used in the

Specifications Package. The January 2021 Standard Specifications for Road

and Bridge Construction define " bidd er " as an individual, firm, or corporation

submitting a proposal for the proposed work . It also separately define s

" contractor " as the individual, firm, joint venture, or company contracting

with the Department to perform the work . These definitions applie d to the

procurement of C ontract No. E5X18.

8 . The Solicitation described the contract as a lump - sum " performance "

contract or performance - based contract. This means that the Department will

pay the winning contractor a fixed monthly price for maintaining certain

performance levels. The goal of a performance contract is to achieve an

ultimate result: to maintain a level of service as defined within the

specifications and scope of the contract Ð here, the Department ' s highway

lighting system throughout Distric t Five . If the contractor satisfies its

contractual obligations Ð whether by self - performing the work or by

subcontracting the work Ð the contractor is paid on a lump - sum basis.

9 . W ith a performance contract, the Department does not know whether

any of the w ork is subcontracted or whether the contractor self - performs the

work. With a performance maintenance contract, the Department ' s Special

Provisions typically do not require bidders to submit proof of licensure with

their bids. It is up to the contractor, a fter contract execution, to conduct field

assessments , to determine work needs , to determine what activities need to

be performed , and whether any licensure is required to perform those

activities .

10 . Performance contracts are distinguished from " task " or " work -

directed " contracts, in which the Department, itself, identifies the work needs

and issues work orders, or task orders, directing the contractor to furnish

specific quantities for specific locations. With the Department ' s work - directed

contracts, th e Special Provisions generally require proof of licensure at bid

time .

1 1 . The B id S olicitation N otice contained the following requirement(s):

EXPERTISE REQUIRED: For this Contract, the

Contractor is required to have at least three years

of experience in t he performance of Highway

Lighting, or the Project Superintendent must have

at least three years of like experience as a

Superintendent. A Contractor that presently has a

certificate of prequalification with the Department

in both " Underground Utilities (E lectric) " and

Traffic Signal " will suffice to meet the above

requirements .

1 2 . The Solicitation included a form titled " Experience in Highway

Lighting " ( " Experience Form " ), by which a bidder could demonstrate

compliance with the Solicitation ' s expertise r equirement. The Experience

Form contained blank spaces in which a bidder was to list qualifying projects,

as well as a space a bidder could mark with an " X " to indicate that it is

prequalified with the Department in both Underground Utilities (Electric)

an d Traffic Signal, depending on how the bidder elected to meet the

Solicitation ' s expertise requirement .

1 3 . To be eligible to bid on Contract No. E5X18, bidders were required to

have either three years ' experience in highway lighting or possess a

certifica te of prequalification with the Department in both Underground

Utilities (Electric) and T raffic S ignal. The Solicitation left it up to the bidder

which method would be used.

1 4 . One of the special provisions in the Specifications Package , under the

heading " Contra c tor Responsibility , " was a modification of Article 715 - 2.1 of

the Standard Specifications, which was deleted and replaced with the

following:

A license to do business as a certified or registered

electrical contractor pursuant to Chapter 489,

Par t II, Florida Statutes is required. Provide a

journeyman electrician possessing a valid

journeyman electrician ' s license to supervise all

work, Provide copies of all licenses, certificates, and

registrations to document compliance with this

Article upon re quest by the Engineer .

1 5 . The Specifications Package also provide d in A rticle 8 - 1, titled

" Subletting or Assigning of Contracts, " that the " Contractor " may " sublet, " or

subcontract, the contract work . Article 8 - 1 provide d that to subcontract any

work, th e Contractor must submit a written request to the Department ' s

Engineer . This provision further state d that such a request is approved by

default unless the Engineer notifies the Contractor within five business days

of receipt of the request that the Depar tment does not consent to the request .

1 6 . The Solicitation further stated that the Department ' s Proposal Budget

Estimate for the contract was $476,000.00. No timely challenge to the

Solicitation specifications was ever filed.

The Parties ' Submissions an d the Intended Award

17. On or before the March 25, 2021 , due date, DBi and ALS submitted

bids to the Department in response to the Solicitation .

18. DBi ' s bid total was $547,308.00. DBi attested to having the requisite

experience, listing three Department highway lighting contracts on which it

served as prime contractor, spanning from July 2014 to June 202 0 . DBi also

indicated that it was prequalified with the Department in both Underground

Utilities (Electric) and Traffic Signal. Jeffrey Schechtman, DBi ' s Chief

Operating Officer, testified that this indication of being prequalified was

made in error, but that DBi nonetheless provided the information in the

experience section which met the expertise requirement.

19. ALS ' bid total was $799,200.00. ALS also attested to having the

requisite experience, claiming prequalification with the Department in both

Underground Utilities (Electric) and Traffic Signal . Although it is undisputed

that ALS has many years of experience in h ighway l ighting, ALS chose not to

li st any qualifying projects, and instead relied solely on its prequalification

for its bid proposal.

20. On March 25, 2021, the Department issued the Vendor Ranking for

the Solicitation , which indicated that DBi was responsive and had submitted

the lowest b id, and the Technical Review Committee recommended the

Department award Contract No. E5X18 to DBi. On April 1, 2021, the

Contract Awards Committee indicated an intent to award Contract

No. E5X18 to DBi. On April 6, 2021, ALS filed , with the Department , its

notice of intent to protest and , on April 14, its P etition . ALS filed an

Amended Petition on June 11, 2021.

The Protest

21. ALS contends that both the Solicitation and section 489, part II,

Florida Statutes, required each bidder to hold an electrical con tracting

license, issued by the Florida Department of Business and Professional

Regulation, at the time of bid submission.

22. According to ALS, because DBi lacks such a license, DBi is

nonresponsive and nonresponsible , and the Department ' s intended award to

DBi is clearly erroneous, contrary to competition, arbitrary, or capricious.

23. Additionally, ALS contends that DBi does not have the highway

lighting expertise required by the Solicitation.

DBi and the Department Response s

24. DBi admits that it did not have an electrical contractor license at the

time of bid submission and does not have a certificate of prequalification .

However, both DBi and the Department assert that neither the Solicitation

n or chapter 489, part II, require it . Rather, the license requirement is not for

the bidder, but for the c ontractor (the entity that is successfully awarded the

project ) and can be satisfied by using the services of a licensed subcontractor.

2 5. Further, DBi asserts that it properly listed three highway lighting

projects which it supervised, thereby demonstrating the requisite experience.

2 6. Both DBi and the Department question ALS ' standing to bring this

protest because , although ALS indicated it holds prequalification in both

Underground Utilities (Electric) a nd T raffic S ignal , ALS does not possess

prequalification for Underground Utilities.

2 7 . To the extent ALS argues the Solicitation, by its scope of work,

necessitate s that a bidder ha s a license in electrical contracting, ALS is

attempting to litigate an un timely specifications challenge.

The License Requirement

2 8 . ALS contends " the entirety of the work [under Contract No . E5X18]

constitutes electrical contracting for which an electrical contracting license is

absolutely required. " Amended Petition , ¶ 45. According to ALS, t he

requirement is set forth both expressly in the Solicitation and by the nature

of the work described therein .

2 9 . ALS points to Article 715 - 2.1 of the Specifications Package , entitled

" Contractor Responsibility " : " A license to do busin ess as a certified or

registered electrical contractor pursuant to Chapter 489, Part II, Florida

Statutes is required. "

3 0 . Chapter 489, part II, governs electrical contracting. Under the statute ,

only certified or registered electrical contractors are per mitted to perform

electrical contracting in Florida. § 489.516(2), Fla. Stat. ( " No person who is

not certified or registered shall engage in the business of contracting in this

state. " ) .

3 1. DBi and the Department stipulated on the record that most of the

work described in the Specifications Package is electrical contracting work

that requires an electrical contractor ' s license under c hapter 489 , part II .

ALS expert, Curtis Falany, testified to the same. Mr. Falany conceded that

under chapter 489, part II, work requiring an electrical contracting license

begins the first time a worker approaches an electrically energized device and

begins to manipulate it. Mr. Falany further admitted it is possible that , after

Contract No. E5X18 is executed, a month could el apse without any such work

needing to be performed .

3 2. DBi does not dispute that work requiring electrical contracting

licensure will likely arise under Contract No. E5X18, but contends that , in

this performance maintenance contract, exactly what work wil l be performed

is entirely speculative at this point. Further, while ALS refers to the

Specifications Package as the contract ' s " scope of work, " DBi asserts that the

Specifications Package is a set of specifications that would apply to work that

may need t o be performed under the contract .

3 3. Although ALS ' argument, that intended electrical contracting work

must be awarded to a licensed contractor , makes common sense, it ignores

the explicit language of the Specifications and the reality of a performance -

b ased maintenance contract .

3 4 . The only reference in the Specifications to a license requirement is

under the heading " Contractor Responsibility , " not " Bidder Responsibility. "

3 5. In fact, when the Department inten d s to require the bidder to have the

elect rical license, it is quite capable of asking for proof of the same at the time

of the bid submission . For example, t he Department entered into evidence

the solicitation for a District Seven highway lighting maintenance contract

that ALS was recently awarde d, Contract No. E7N92 , in which the

solicitation expressly provide s bidders " must possess and submit with their

bid a license to do business as a Certified or Registered Electrical Contractor

pursuant to Chapter 489, Part II, Florida Statutes. " The Solicit ation here

contains no such provision. Likewise, the " Experience in Highway Lighting "

form bidders were required to submit with their bids did not mention

licensure.

3 6. ALS contends DBi may not subcontract electrical work to a licensed

electrical contract or. However, this ignores A rticle 8 - 1 of the Specifications,

entitled, " Subletting or Assigning of Contracts, " wh ich states that the

" Contractor " may " sublet, " or subcontract, the contract work . The

Department ' s witnesses testified that this means the cont ractor may

subcontract up to 100 percent of the contract work . There is no provision in

the Solicitation directing bidders to identify their subcontractors when

submitting their bids. Indeed, with performance - based contracts, the

Department typically does not ever learn whether any of the work is

subcontracted or whether the work is self - performed.

3 7 . The competent, substantial evidence showed that not all work that

might be performed under Contract No. E5X18 directly involves electrical

work. For example, maintenance of traffic (referred to as " MOT " ), tree

trimming, and the general assessment of what work is needed typically do

not involve installing, repairing, altering, adding to, or designing electrical

wiring, fixtures, appliances, apparatus, raceways, conduit, or any part

thereof that generates, transmits, transforms, or utilizes electrical energy in

any form . S ee § 489.505(12), Fla. Stat .

3 8 . Consequently, the undersigned finds that Contract No. E5X18 is not

an electrical contract per se, but rather i s a performance maintenance

contract that Ð like a broader, general performance maintenance contract Ð

should eventually involve electrical work that requires electrical contracting

licensure. The undersigned also finds that , while such work is likely to occur ,

whether and when it will is entirely speculative . Accordingly, only requiring

the actual c ontractor (either on its own or through a subcontractor) instead of

the bidder to possess an electrical contractor ' s license at the time of work, is

the only logica l interpretation of the S olicitation language .

The Experience Requirement

3 9. As discussed above, the Solicitation instructed each bidder to

demonstrate, using one of two methods, the expertise that qualifies it to

perform the contract . B idders could desc ribe " at least three years of

experience in the performance of Highway Lighting " or show that they were

prequalified by the Department in two specifi ed work classes .

4 0. On the " Experience in Highway Lighting " form each bidder was

required to submit, DBi l isted three contracts, all performance - based

contracts with the Department ' s District Five , and all active contracts when

bids for Contract No. E5X18 were submitted. In the space to describe the

" Type of Work Performed, " DBi stated, " Asset Maintenance/High way

Lighting. " In the space to specify " Prime or Sub, " DBi stated, " Prime. " 1

4 1. ALS contends DBi lacks the required expertise in two ways: (1) DBi

did not self - perform the electrical work on those contracts but instead

subcontracted the work ; and (2) thos e contracts were " asset maintenance "

1 DBi also checked the ÑprequalifiedÒ box, but its Chief Operating Officer testified that this

was an error.

contracts, not " highway lighting maintenance " contracts. DBi readily admits

that ALS performed some of the electrical work as a subcontractor on each

contract listed and contends that DBi ' s position as prime contractor on all

three contracts renders the work it subcontracted DBi ' s experience for

purposes of the Solicitation.

4 2. That the contracts DBi listed were general asset maintenance

contracts instead of , specifically , lighting maintenance contracts , does not

matter here. The Solicitation expressly refers to Contract No. E5X18 as a

" Maintenance Performance Contract " and lists as the sole work item

" Highway Lighting Maintenance. " The Department considers highway

lighting to be an asset of the Department, which is cons istent with calling

Contract No. E5X18 a maintenance contract.

4 3. Further, Ms. Hutchison, the State Administrator for Maintenance

Contracting, testified , although some of the Department ' s asset maintenance

contracts are broad in scope and cover all work i n a geographic area, that is

not always the case; sometimes an asset maintenance contract is specific to

only one type of work. The Solicitation provided that a bidder could

demonstrate expertise by showing it had " at least three years of experience in

the performance of Highway Lighting. " The Solicitation does not state that

experience must be direct - or self - performed or that the bidder may not

include experience of subcontractors.

4 4. From the Department ' s and DBi ' s perspectives, DBi " performed " those

co ntracts Ð including the electrical work Ð within the meaning of the

Solicitation ' s expertise provision. DBi is the one that contracted with the

Department and is responsible to ensure all work under the contracts is

timely completed in accordance with the cont racts ' terms. DBi is the one that

invoiced the Department and the one the Department has paid and pays for

all work under the contracts . And because, like the contract at issue here,

these contracts are performance contracts, DBi was and is the one

respons ible for determining what work needs to be performed and how. DBi

does not simply oversee others ' performance of work items determined to be

necessary by the Department, as occurs with a work - item contract. That

certain work was performed by subcontractors does not negate that DBi

successfully completed the contracts.

4 5. T he Department ' s practice, when procuring performance - based

contracts, of treating a prime contractor ' s experience to include the

experience of subcontractors is rational, reasonable, and justifiable.

Accordingly, DBi met the experience requirement of the Solicitation.

4 6. In contrast, ALS did not meet the experience requirement. ALS did

not list three years ' experience in highway lighting work, instead choosing to

demonstrate expertise sol ely through its Department - issued prequalification.

ALS submitted a copy of its current Certificate of Qualification and checked

the " prequalified " box on the Experience in Highway Lighting form,

representing that it held both Underground Utilities (Electr ic) and Traffic

Signal prequalification . However, ALS ' Certificate of Qualification reflects

that ALS is prequalified in the work classes Traffic Signal and Electrical

Work , but not Underground Utilities (Electric).

4 7. ALS attempted to show , through the t estimony of its Region Manager

Richard Calledare , that Electrical Work is a " major " work class and

Underground Utilities (Electric) is a " minor " work class subsumed within the

umbrella of Electrical Work and that , therefore , ALS was effectively

prequalifie d in both work classes . In support, Mr. Calledare suggested that

the undersigned should " check the [Department ' s] website. " However the

website was not introduced into evidence and constitutes uncorroborated

hearsay which cannot support a finding of fact.

4 8. ALS presented no competent, substantial evidence supporting this

argument Ð no evidence as to what major and minor work classes are and no

evidence that the Electrical Work work class encompasses Underground

Utilities (Electric). Further, the only eviden ce ALS present ed was testimony

from Mr. Calledare, yet there was no evidence Mr. Calledare was ever

employed by the Department or had any specialized knowledge or other

qualification that would render his perspective on this issue competent and

substantial evidence sufficient to support a finding that ALS ' prequalification

in Electrical Work sufficed to meet the Underground Utilities (Electric)

requirement.

4 9. In contrast, the Department presented competent, substantial

evidence showing that ALS ' argument fails. A s Mr. Calledare conceded, the

Solicitation ' s plain language makes no mention of the work class Electrical

Work. T he Department ' s current list of qualified contractors show s that

multiple contractors are prequalified in both these classes, demonstra ting

that a contractor can be prequalified in Electrical Work without being

prequalified in Underground Utilities (Electric) and reflecting that being

prequalified in Electrical Work is not the same as being prequalified in

Underground Utilities (Electric) . Deanna Hutchison, a Department State

Administrator for Maintenance Contracting, testified that Underground

Utilities (Electric) and Electrical Work are separate, mutually exclusive

classifications and that Electrical Work is not inclusive of Underground

Utilities (Electric) .

5 0. ALS ' failure to hold a Department - issued prequalification in

Underground Utilities (Electric) , as well as Traffic Signal, and failure to

demonstrate the required expertise by any other means , rendered ALS ' bid

nonresponsive . 2

C O NCLUSIONS OF L AW

5 1 . DOAH has personal and subject matter jurisdiction in this proceeding

pursuant to sections 120.569 and 120.57(1) and (3).

2 Although on initial review the Department deemed ALS to be responsive despite ALS'

failure to be prequalified in the required work classes , that review was only cursory because

ALS was only the second - lowest bidder and the Department intended to move forward with

DBi. Had ALS been the low bidder, the Department would have conducted an in - depth

review of ALS' pre - qualifications and likely dee med ALS to be nonresponsive.

5 2 . Pursuant to section 120.57(3)(f), the burden of proof rests with ALS as

the party opposing the proposed agency action. State Contracting & Eng ' g

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

sustain its burden of proof by a preponderance of the evidence. See Dep ' t of

Transp. v. J.W.C. Co. , 396 So. 2d 778, 787 (Fla. 1st DCA 1981).

5 3. Section 120.57(3)(f) provides, in part, 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, propo sals, 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.

5 4. An arbitrary decision is one that is not supported by facts or logic, or is

despotic. See Agrico C hemical 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 to the most rudimentary command of rationality. The

reviewing court is not authorized to examine w hether the agency ' s empirical

conclusions have support in substantial evidence. " 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. 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. " ).

5 5. 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. Administrat ive discretion must be

reasoned 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.

5 6. The " clearly erroneous " standard has been explained by the Florida

Supreme Court as follows:

A finding of fact is clearly erroneous when,

although there is evidence to support such finding,

the reviewing 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 convinced that it would have decided

the case different ly. 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. Similarly, it has been

held that a finding is clearl y 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 th e 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.

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

5 7. To establish that the actions challenged in this proceeding are

" contrary to competition, " ALS must establish that those actions, at a

minimum:

(a) create the appearance of and opportunity for

favoritism;

(b) erode public confidence that con tracts are

awarded equitably and economically;

(c) cause the procurement process to be genuinely

unfair or unreasonably exclusive; o r

(d) are unethical, dishonest, illegal, or fraudulent.

See § 287.001, Fla. Stat.; and Harry Pepper & Assoc. , Inc. v. Ci ty of Cape

Coral , 352 So. 2d 1190, 1192 (Fla. 2d DCA 1977).

5 8. Most significantly, DOAH does not sit as a substitute for the

Department regarding whether to award the contract to a particular vendor.

If the Department ' s decision to award to DBi is justifi able under any analysis

that a reasonable person would use to reach a decision of similar importance,

the decision is neither arbitrary nor capricious and must be upheld. Dravo

Basic , 602 So. 2d at 632, 634 n.3. Indeed, a state agency is afforded wide

disc retion in soliciting and accepting bids, and its decision, when based on an

honest exercise of its discretion, will not be overturned even if the decision

may appear erroneous and reasonable people may disagree. Liberty Cty. v.

Baxter ' s Asphalt & Concrete, Inc. , 421 So. 2d 505, 507 ( Fla. 1982) .

ALS Submitted a Nonresponsive Bid and Lacks Standing

5 9 . Standing is a jurisdictional threshold issue in a chapter 120

administrative proceeding, the equivalent of subject - matter jurisdiction. See,

e.g., Abbott Labs . v. Mylan Pharm s . , Inc. , 15 So. 3d 642, 651 n.2 (Fla. 1st

DCA 2009); Grand Dunes, Ltd. v. Walton Cty. , 714 So. 2d 473, 475 (Fla. 1st

DCA 1998). To be entitled to proceed with a bid protest, a petitioner must

first establish its standing. See, e.g., Sprint Payphone Servs., Inc. v. Dep ' t of

Corrections , Case No. 01 - 0189BID, ¶ 36 ( Fla. DOAH Apr. 6, 2001 ; Fla. DOC

Apr. 24, 2001 ). DOAH lacks jurisdiction to reach the merits of a petition

unless and until the petitioner affirmatively establishes standing. See, e .g.,

Unisys Corp. v. Dep ' t of Child . & Fam . Servs. , Case No. 05 - 3144BID, ¶ 81

( Fla. DOAH Feb. 2, 2006 ; Fla. DCF Feb. 21, 2006 ); Sprint Payphone , Id . at

¶ 37.

6 0 . To have standing to challenge agency action under chapter 120, a

petitioner must demonstrate t hat the agency action affected the petitioner ' s

substantial interests. See, e.g ., § 120.569(1), Fla. Stat. (2016); Westinghouse

Elec. Corp. v. Jacksonville Transp. Auth. , 491 So. 2d 1238, 1240 Ï 41 (Fla. 1st

DCA 1986). In a bid protest, the petitioner must e stablish that its substantial

interests are affected by demonstrating that it would be eligible for an award

of the contract if it were to prevail on its arguments. Intercont ' l Props. Inc. v.

Dep ' t of HRS , 606 So. 2d 380, 384 ( Fla . 3rd DCA 1992) .

6 1 . A bid der that submits a nonresponsive bid or proposal is not eligible

for award of a contract and , therefore , does not have substantial interests

affected by the award. See, e.g., Westinghouse , 491 So. 2d at 1240 Ï 41

(petitioner that submitted nonresponsive pric e proposal lacked standing to

protest) ; Preston Carroll Co. v. Fla. Keys Aqueduct Auth ., 400 So. 2d 524, 525

(Fla. 3d DCA 1981) (bidder not in line for contract award " was unable to

demonstrate that it was substantially affected; it therefore lacked standi ng to

protest the award of the contract to another bidder " ) .

6 2 . As a matter of law, the Solicitation required each bidder relying on

Department prequalification to demonstrate its expertise to be prequalified

in both the work class Underground Utilities ( Electric) and the work class

Traffic Signal.

6 3 . A LS failed to show that it meets the Solicitation ' s expertise

requirements, as it did not show any experience in highway lighting, or that

of a superintendent, nor is it prequalified with the Department in b oth

Underground Utilit ies (Electric) and Traffic Signal .

6 4 . ALS ' argument , that the work class Underground Utilities (Electric),

as a minor work class, is subsumed within ALS ' prequalification for the work

class Electrical Work, a major work class in whic h ALS is prequalified, is

unpersuasive. ALS ' contention is contrary to the Solicitation ' s plain language

and contrary to the testimony of Department employees who regularly deal

with the Department ' s various prequalification categories. There is simply no

provision in the Solicitation that allows prequalification in the work class

Electrical Work to suffice to demonstrate expertise. Under the principle

expressio unius est exclusio alterius , that the Solicitation listed two

prequalification work classes and omitted all others reflects that the

Department did not intend for any other work classes to suffice.

6 5 . Additionally, ALS presented no competent, substantial evidence

regarding the interplay between major and minor work c lasses and no

competent, substant ial evidence showing that its prequalification in

Electrical Work encompasses prequalification in Underground Utilities

(Electric).

6 6 . Here, as a nonresponsive bidder, that is ineligible for contract award,

ALS simply is not affected by the award to DBi. Thus, whether the award to

DBi violated the Department ' s governing statutes, its rules or policies, or the

Solicitation specifications , cannot be determined in this proceeding .

DBi ' s Bid Was Responsive to the Solicitation

6 7 . Even were ALS deemed to be re sponsive, ALS ' protest still would need

to be dismissed. ALS alleges that DBi ' s bid was not responsive to the

Solicitation ' s requirements and that DBi is therefore a nonresponsive bidder,

due to it not being a licensed electrical contractor and not meeting the

expertise requirement. The evidence, as described above, demonstrates that

DBi ' s bid was responsive to the Solicitation for Contract No . E5X18 because it

conformed in all material aspects to the S olicitation.

6 8 . The Bid Solicitation Notice does not m ake any reference to electrical

contracting licensure. T he only reference in the Solicitation to an electrical

contracting license is in the contractual specifications that expressly apply to

the contractor Ð not the bidder Ð during the course of contract perf ormance.

Article 715 - 2.1 , titled " Contractor Responsibility " and found in the

Specifications Package, provides that the license is required, and that proof of

licensure must be provided to the Department ' s Engineer only if requested .

6 9 . Importantly, under the Solicitation , any licensing responsibilities of

the winning bidder take effect only upon contract execution. The

Specifications Package is part of the Solicitation because it informs the

bidder of what its duties and responsibilities will be if it bec omes the

" Contractor " Ð that is, if selected to perform the contract. The specifications in

a Specifications Package are not requirements that must be met at the time

of bid unless the bid solicitation notice itself provides as much. Here, the B id

S olicitati on N otice did not.

7 0 . Article 1 - 3 of the Standard Specifications (Definitions) defines the

word " Contractor " to mean " [t]he individual, firm, joint venture, or company

contracting with the Department to perform the work. " That article defines

the word " Bi dder " as " [a]n individual, firm, or corporation submitting a

proposal for the proposed work. " Thus , where a provision of the Standard

Specifications or the Specifications Package uses the word " Contractor " but

not the word " Bidder, " the provision does not apply to bidders, but only to the

party that enters the contract with the Department.

7 1 . ALS ' arguments , that DBi is not properly licensed and cannot

subcontract the electrical work , also fails. A rticle 8 - 1 of the Specifications

Package plainly contemplat es subcontracting. This provision tells the

Contractor how to obtain subcontracting approval, and no provision of the

Solicitation prohibits subcontracting .

7 2 . The sole legal prohibition on a contractor ' s subcontracting electrical

work is found in section 489.113, which is contained in chapter 489, part I,

titled " Construction Contracting. " That statute first provides that " [a]

contractor shall subcontract all electrical È work, unless such contractor

holds a state certificate or registration in the È trad e category. " § 489.113(3),

Fla. Stat. Clearly then, a general contractor ' s subcontracting electrical work

is not outright prohibited. Section 489.113 also provides that a prime

contractor may not subcontract electrical work where such work constitutes

the majority of the prime contract ' s work. § 489.113(9)(a), Fla. Stat.

7 3 . But chapter 489, part I, does not apply to the contractor that is

awarded Contract No. E5X18 and , th erefor e , does not apply to DBi. Section

489.103(1) provides that part I does not appl y to " [c]ontractors in work on

bridges, roads, streets, [or] highways È , and services incidental thereto. "

The phrase " services incidental thereto " is defined by rule (promulgated by

the Construction Industry Licensing Board " in agreement with " the Florid a

Department of Transportation, § 489.103(1), Fla. Stat.) as " all work on

bridges, roads, streets, highways, and railroads . " Fla. Admin. Code R. 61G4 -

12.011(9). Simply put, contractors working on the Department ' s roadway

contracts are exempt from chapter 4 89, part I .

7 4 . DBi also met the three years ' experience " in the performance of

highway lighting work " requirement of the Solicitation by listing three

Department contracts for which it serves as the prime contractor.

7 5 . Ultimately, DBi was responsible fo r ensuring that the three contracts

it listed as experience were fully and properly completed. Based on the

Solicitation, other governing documents, and the Department ' s long - held

perspective, that DBi accomplished the work furnished under those contracts ,

constitutes DBi ' s " experience " within the meaning of the Solicitation. ALS

has failed to establish that DBi lacks the requisite experience.

7 6. Any person who is adversely affected by the agency decision or

intended decision shall file with the agency a n otice of protest in writing

within 72 hours after the posting of the notice of decision or intended

decision. § 120.57(3)(b), Fla. Stat. T o the extent ALS suggests that chapter

489 necessitates that a bidder hold an electrical contractor ' s license at the

t ime of bid submission, it constitutes an untimely specifications challenge.

7 7. ALS has not established, by a preponderance of the evidence, that the

Department acted contrary to its governing statutes, rules or policies, or the

S olicitation. ALS has furt her failed to establish , by a preponderance of the

evidence, that the Department ' s decision to award the contract at issue to

DBi is arbitrary, capricious, clearly erroneous, or contrary to competition.

ALS has not met its burden , and the Department ' s deci sion must not be

disturbed.

R ECOMMENDATION

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

R ECOMMENDED that the protest filed by American Lighting and Signalization,

LLC, should be dismissed , and the Department of Transportation shou ld

e n ter a final order awarding Contract No. E5X18 to DBi.

D ONE A ND E NTERED this 27th day of September , 2021 , in Tallahassee,

Leon County, Florida.

S

M ARY L I C REASY

Administrative Law Judge

1230 Apalachee Parkway

Tallah assee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 27th day of September , 2021 .

C OPIES F URNISHED :

Douglas Dell Dolan, Esquire Ben W. Subin, Esquire

Department of Transportation Holland & Knight, LLP

Haydon Burns Buil ding 200 South Orange Avenue , Suite 2600

605 Suwannee Street , Mail Stati on 58 Orlando, Florida 32801

Tallahassee, Florida 32399 - 045 0

Karen D. Walker, Esquire Megan S. Reynolds, Esquire

Holland & Knight, LLP Ve zina , Lawrence & Piscitelli, P.A.

315 South Calhoun Street , Suite 600 413 East Park Avenue

Tallahassee, Florida 32301 Tallahassee, Florida 32301

William Robert Vezina, III, Esquire Sean W. Gellis, General Counsel

Vezina, Lawrence and Piscitell i, P.A. Department of Transportation

413 East Park Avenue Haydon Burns Building

Tallahassee, Florida 32301 605 Suwannee Street , Mail Station 58

Tallahassee, Florida 32399 - 045 0

George Spears Reynolds, Esquire

Department of Transportation James Keith Ramsey , Esquire

Haydon Burns Building Holland & Knight, LLP

605 Suwannee Street , Mail Station 58 200 South Orange Avenue , Suite 2600

Tallahassee, Florida 32399 - 045 0 Orlando, Florida 32801

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

D e partment of T ransportation D epartment of T ransportation

Haydon Burns Building Haydon Burns Building

605 Suwannee Street, M ail S tation 58 605 Suwannee Street, M ail S tation 57

Tallahassee, Florida 32399 - 0450 Tallahassee, Florida 32399 - 0450

N OTIC E 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 Recommended

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

case.