21-002038BID Capital Asphalt, Inc. vs. Florida Department Of Transportation Status: Closed Recommended Order on Monday, October 25, 2021.

Summary: Petitioner failed to show that the Department's action of rejecting all bids is arbitrary.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

C APITAL A SPHALT , I NC . ,

Petitioner ,

vs. Case No. 21 - 2038BID

F LORIDA D EPARTMENT OF

T RANSPORTATION ,

Respondent .

/

R EC OMMENDED O RDER

Pursuant to notice, a final hearing in this cause was held in Tallahassee,

Florida, via Zoom video conference on July 27 and 28 , 2021, before Linzie F.

Bogan, Administrative Law Judge of the Division of Administrative

Hearings.

A PPEARANCES

For Petitioner: Thomas J. Guilday, Esquire

Guilday Law, P.A.

1983 Centre Pointe B oulevar d, Suite 200

Tallahassee, Florida 32308

For Respondent: Douglas Dell Dolan, Esquire

George Spears Reynolds, Esquire

Florida Department of Transportation

605 Suwannee Street , MS 58

Tallahassee, Florida 32399 - 0450

S TATEMENT OF T HE I SSUE

Whether the Department acted in an arbitrary 1 manner when deciding to

reject all bids submitted for contract number T2789 for construction in

District 2 from Cedar Street to the Madison County line .

P RELIMINARY S TATEMENT

The instant proceeding involves a protest of a decision by the Florida

Department of Tra nsportation (Department or FDOT) to reject all proposal s

received in response to procur ement c ontract n umber T2789 (Contract or

T2789). The Department issued an invitation to bid (ITB) containing the

specifications for the Contract. Through the ITB , the Department sought to

award a contract for Ñmilling and resurfacing, base work, shoulder t reatment,

drainage improvements, highway signing, guardrail, and other incidental

construction on [State Road] 55 from Cedar Street to the Madison County

line.Ò The limits of the project are in Taylor County, Florida, which is within

the DepartmentÔs Distr ict 2. The Department received two responses to the

ITB, both of which were deemed responsive. Capital Asphalt, Inc.

(Petitioner) , w as designat ed by the Department as the Ñlow bidderÒ on the

Contract. The Department, however, elected not to award the Contr act and

notified Petitioner that all bids were rejected, the procurement cancelled, and

that the Department intended to re - advertise the procurement at a later

date . Petitioner timely filed a protest of the DepartmentÔs decision to reject

all bids.

1 Paragraph 11 of th e PetitionerÔs Formal Notice of Bid Protest alleges that ÑFDOTÔs decision

to reject all bids is arbitrary as defined in Section 120.57(3), Florida Statutes,Ò and the

prayer for relief Ñrequests an Order finding the FDOTÔs intended action to reject all bids was

arbitrary and that Proposal T2789 should be awarded to Capital.Ò Because there are no

allegations that the challenged decision was either Ñdishonest, or fraudulent,Ò the analysis

herein is limited to whether the same was Ñarbitrary.Ò If the evidence d emonstrates that the

Department acted in an arbitrary manner, then, ipso facto , the Department also acted in an

illegal manner.

On Fe bruary 26, 2021, Petitioner filed a Notice of Protest regarding the

DepartmentÔs decision to reject all bids and re - solicit the Contract. On

March 8, 2021, Petitioner, with respect to the DepartmentÔs decision to reject

all bids and re - solicit the Contract , filed a ÑFormal Notice of Bid Protest

Pursuant to £ 120.57(3), Florida Statutes.Ò

On June 25, 2021 , PetitionerÔs protest w as referred to the Division of

Administrative Hearings (DOAH) for assignment of an Administrative Law

Judge. The final hearing was conducted on July 27 and 28, 2021.

At the final hearing, Petitioner offered testimony from its company

president, Edward M. Mitchell, III, and FDOT employees Michael Horst,

Richard Miles, and Jose Hernando. The Department offered testimony from

its emplo yee s Michael Horst, Jose Hernando, Howard Moseley, Robert Parks,

Christopher Dicks, and James Driggers, Jr., and also from PetitionerÔs

company president Mr. Mitchell.

Joint Exhibits 1 through 6 were admitted into evidence. PetitionerÔs

Exhibits 3, 6 th rough 1 3, and 15 were admitted into evidence. FDOT Exhibits

7 through 31 were also admitted into evidence.

A t hree - volume Transcript of the final hearing was filed with DOAH on

August 25, 2021. On September 1, 2021, an Order Granting Extension of

Time was entered which authorized the filing of proposed recommended

orders on or before September 20, 2021 . The parties each filed a Proposed

Recommended Order, which were considered in the preparation of this

Recommended Order.

F INDINGS OF F ACT

1. On or about December 23, 2020, the Department issued a Bid

Solicitation Notice for contract T2789. Bidders were instructed to submit bids

to the Department on or before 10:30 a.m. on January 27, 2021. The Bid

Solicitation Notice advised that the Department sought to c ontract with a

vendor to construct roadway improvements for Ñ milling and resurfacing, base

work, shoulder treatment, drainage improvements, highway signing,

guardrail, and other incidental construction on [ State Road ] 55 from Cedar

St [ reet ] to the Madison County Line. Ò State Road 55 is also known as US

Highway 221 (US 221) and is in Taylor County, Florida. The Department

intended to award the Contract to the responsible and responsive vendor who

submitted the lowest responsive bid.

2. Of significance to the instant dispute, item 0337 - 7 - 83 of the Contract

proposal calls for the use of ÑASPHALT CONCRETE FRICTION COURSE,

TRAFFIC C, FC - 12.5, PG 76 - 22.Ò The additive PG 76 - 22 is a binder used for

the roadway friction course.

3. The Bid Solicitation Notice states t hat Ñ[t]he bid tabulation and intent

to award will be posted on February 10, 2021 or February 24, 2021 at

http://www.fdot.gov/contracts/, click the ÓLetting and Project Information Ô and

select letting date from the Listings Menu. The posting provides notic e of the

DepartmentÔs intent to award a contract or reject all bids. Ô Ò

4. On January 27, 2021, t he Department timely received two bids for

T2789. Also, on January 27, 2021, t he Department opened and evaluated the

bids , and issued its Ñ Preliminary Letting Results Report, Ò which identified

Petitioner as having submitted the lowest responsive and responsible bid.

The phrase Ñpreliminary lettingÒ appears to be an undefined term of art

which is used to describe the process by which bids are unsealed and ranked.

5. On February 24, 2021, the Department announced as to T2789 that the

decision was made to ÑREJECT ALL BIDS.Ò

6. Jose Hernando is a professional engineer, and has served as the

Department's District 2 m aterials and r esearch e ngineer for less than two

ye ars. In this capacity, Mr. Hernando directly supervises the District 2

geotechnical engineer, the concrete engineer, the pavement engineer, and the

operations administrator. Mr. Hernando, prior to assuming his current

responsibilities, served as the Distri ct 2 geotechnical engineer.

7. On or about February 2, 2021, which was less than a week after

Petitioner was identified by the Department as the low bidder for T2789,

Mr. Hernando received a call from Steve Sedwick , who at the time worked in

private indust ry as a consultant. The identity of the business on whose behalf

Mr. Sedwick was acting when he called Mr. Hernando was not offered by

either party. Nevertheless, Mr. Hernando testified that the firm that

Mr. Sedwick works for generally provides Ñrecommend ations or reviewsÒ to

the Department of projects handled by Mr. SedwickÔs employer.

8. According to Mr. Hernando, he was asked by Mr. Sedwick if the

Department considered using a high polymer binder for project T2789 instead

of PG 76 - 22 which was called fo r in the ContractÔs specifications. PG 76 - 22 is

Ñone step below high polymer,Ò and use of high polymer was incorporated into

the DepartmentÔs standard specifications in July 2017. Mr. Sedwick

previously served as the DepartmentÔs District 2 materials and r esearch

engineer, and he and Mr. Hernando often conversed about materials - related

issues pertaining to the Department Ô s roadway projects.

9. Mr. Hernando testified that when he spoke with Mr. Sedwick Ñhe did

not know anything about È projectÒ T2789 and spe cifically did not know that

Petitioner had been designated by the Department as low bidder.

10. After informing Mr. Sedwick that he would inquire about the use of

high polymer binder for the project, Mr. Hernando contacted District 2

pavement engineer Mich ael Horst, since he defers to the pavement materials

engineer for Ñthese types of asphalt - related issues.Ò In his position as

District 2 pavement materials engineer, Mr. Horst reports directly to

Mr. Hernando. Mr. Hernando met with Mr. Horst regarding Mr. SedwickÔs

inquiry and asked Mr. Horst if he could Ñlook into it and see if thereÔs any

merit to it.Ò There is no indication in the record that Mr. Hernando made any

reference to M - CORES 2 during his meeting with Mr. Horst, or vice - versa.

11. Mr. Horst, afte r meeting with his supervisor Mr. Hernando,

immediately called Mr. Moseley, who is the State bituminous materials

engineer, because he wanted Mr. MoseleyÔs recommendation on whether he

thought it was a good idea to use high polymer on the project and to se e if the

product was available from the supplier.

12. Mr. Moseley is responsible for setting Ñpolicy, procedure, [and]

specifications for asphalt construction on all Department projects [and]

provide[s] technical support and guidance to each of the distri ct offices, as

needed.Ò According to Mr. Horst, at no time during his conversation with

Mr. Moseley did he recommend the use of high polymer binder on project

T2789.

13. As the pavement materials engineer, Mr. Horst makes

recommendations to District 2Ôs ro adway designer for milling and

resurfacing, and he oversees the production of asphalt for construction

projects.

14. Mr. Horst was familiar with project T2789 and had previously made

materials recommendations in 2018 and 2020 for the roadway included

with in the construction limits of the project. N either recommendation

included the use of high polymer binder as part of the contract specifications.

15. Section 5 of the DepartmentÔs Flexible Pavement Design Manual sets

forth the criteria for selecting the a ppropriate asphalt binder and provides as

follows:

2 According to testimony offered by the Department, Ñ[t]he M - CORES project was a

legislative initiative to examine a new travel corridor along the western side of Florida from

the southwest portion to the Georgia state line.Ò

When High Polymer binder is being considered for

a project, coordinate this decision with the State

Bituminous Materials Engineers office at the [State

Materials Office] SMO.

For open graded friction cou rse mixtures, use PG

76 - 22 unless the underlying structural layer

contains High Polymer. Use High Polymer in the

FC - 5 if the underlying structural layer contains

High Polymer.

The Resilient Modulus of asphalt concrete is less

under a slow - moving load than under a more

dynamic, high speed load. As a result of this effect,

slow moving or stopped trucks have a greater

potential to cause rutting. For situations with slow -

moving or standing truck traffic, and particularly

those sections with a history of ruttin g, use a PG

76 - 22 binder or use a High Polymer binder when

recommended by the SMO.

High Polymer should only be used in travel lanes

and turn lanes with slow - moving or standing truck

traffic or a history of raveling, rutting, or severe

crackingÈ .

16. Wit h respect to the 2018 recommendation for State Road 55 from

Cedar Street on the north side of Perry to the Madison County line,

Mr. Horst recommended the use of PG 76 - 22 binder under conditions where

there was widely dispersed moderate to severe cracking, and Ñwheel path

rutting ranges from 0.01 to 0.30.Ò As noted in the pavement design manual,

the presence of Ñsevere cracking,Ò in itself, satisfies the criteria for the use of

high polymer binder. Nevertheless, Mr. Horst testified that he did not consult

wi th the SMO regarding the use of high polymer binder because Ñthe rutting

wasnÔt the magnitude to put high polymer binder on this roadway.Ò

17. According to Mr. Horst, the roadway in question was not resurfaced

following his 2018 recommendation, but in 202 0 was again considered by the

Department for Ñbituminous resurfacing.Ò On February 20, 2020, Mr. Horst

issued a revised report for State Road 55 from Cedar Street on the north side

of Perry to the Madison County line. Under the section of the revised repor t

labeled ÑGENERAL CONDITION,Ò Mr. Horst noted the following:

The cracking is classified as Class IB, II, and II,

Block - type cracking that is moderate to severe in

extent. The wheel path rutting ranges from 0.0 1 "

to 0.30 " . The structural condition of the roadway is

considered poor due to cracking, separation,

maintenance patches, small spalls, and rutting.

These are the same general conditions cited in his 2018 report, and

Mr. Horst, consistent with his previous recommendation, again suggested the

use of ÑPG 76 - 22 in all mixes due to heavy truck loads.Ò Mr. HorstÔs

recommendation for the use of PG 76 - 22 was accepted and incorporated into

the bid specifications for T2789.

1 8 . In explaining his Ñrevised report,Ò Mr. Horst testified that he Ñdid not

update t he pavement conditions surveyÒ portion of the report since he Ñdid

not do additional field work to determine whether roadway conditions had

substantially changed.Ò

1 9 . Mr. Moseley testified that with respect to T2789, he was contacted by

Mr. Horst who Ñind icated he was concerned about the traffic from the

M - CORES project, and wondered if high polymer binder should be considered

for the project.Ò Mr. Horst, on the other hand, testified that he was vaguely

familiar with the M - CORES project, but did not have any specific information

about areas that would be impacted by the project. There was no testimony

elicited from Mr. Horst that he expressed to Mr. Moseley concerns about the

need to use high polymer based on considerations related to M - CORES.

Nevertheless , it is undisputed that Mr. Horst spoke with Mr. Moseley about

whether T2789 was a candidate for the use of high polymer binder.

20 . Mr. Moseley testified that r equests for approval of the use of high

polymer binder are generally granted. Mr. Moseley also testified that it is

Ñvery uncommonÒ to consider changing to high polymer binder after a project

has let, but decisions of this type are not his responsibility to make because

his Ñ primary focus is whether high polymer binder is warranted from an

engineer ing perspective. Ò 3

2 1 . After speaking with Mr. Horst, Mr. Moseley considered a number of

factors before concluding that high polymer binder should be used for T2789.

Mr. Moseley consulted the 2020 pavement condition survey data for the area.

He understood that the project is in Taylor County, which is prone to karst

formations ( subsurface voids ) that can become sink holes. Mr. Mosely also

consulted with his supervisor Timothy Ruelke, d irector of m aterials, who also

has significant experience with the area f or which T2789 was planned.

Mr. Moseley and Mr. Ruelke examined the State Road 200 r utting

i nvestigation f inal r eport, which was issued by the Department on

September 23, 2020, and noted similarities to the proposed project location.

They also noted that t he Shady Grove area, which is within the proposed

project limits, is prone to highly compressible soils .

2 2 . Mr. Moseley formalized his response to Mr. HorstÔs inquiry in an email

dated February 4, 2021. The email provides as follows:

From: Moseley, Howard

Sent: Thursday, February 4, 2021 5:28 PM

To: Hernando, Jose; Horst, Michael

Cc: Ruelke, Timothy J.

Subject 441058 - 1 - 52 - 01, US 221 High Polymer

Binder Usage

Jose/Mike,

Based on our conversations earlier this week, I

concur with the recommendation to use high

polymer binder on the US 221 project in Taylor

County and approve its use. There are several

reasons why this project will benefit from the use of

high polymer binder.

3 The ÑlettingÒ of a contract generally means the process of Ñchoosing one from among the

number of bidders, and the formal making of the contract with him.Ò BlackÔs Law Dictionary

813 (5th ed. 1979). To be clear, there was never a ÑlettingÒ of T2789 because no contract was

ever awarded to Petitioner.

* Traffic is likely to increase significantly in the

future with the M - CORES proje ct. 4

* This corridor receives a significant amount of

heavily - loaded log trucks going to the Georgia

Pacific Foley Plant and Paper Mill near the

southern end of this project.

* Compaction is limited to the static mode only

due to the karst formations bel ow the surface

through the corridor.

* The need for the pavement design to remain at

grade through the Shady Grove area due to the

highly - compressible soils that were successfully

mitigated several years ago.

* A recent forensic investigation on State R oad

200 indicated the combination of heavily - loaded

log trucks, and reduced density due to

compaction being limited to the static mode,

could increase the rutting susceptibility of

projects. High polymer binder has been shown

to reduce rutting susceptibil ity and cracking in

asphalt pavements.

2 3 . As noted above, Mr. MoseleyÔs email indicates that he concurs

Ñwith the recommendation to use high polymer binderÒ on T2789.

Messrs. Hernando and Horst testified that neither of them made a

recommendation for the use of high polymer binder, so it is not clear from the

evidence as to which ÑrecommendationÒ is referenced by Mr. Moseley.

Nevertheless, Mr. Horst, upon receipt of Mr. MoseleyÔs recommendation,

joined in supporting the use of high polymer binder for the project.

4 Several bills were filed during the 2021 legislative session which were intended to repeal

the M - CORES progr am in its entirety. On or about June 24, 2021, the Governor approved

legislation which appears to have effectively terminated the M - CORES project. When

Mr. Moseley transmitted his memorandum on February 4, 2021, M - CORES was still a viable

project.

2 4 . While Petitioner took exception to many of the points expressed by

Mr. Moseley in his email, Mr. MoseleyÔs opinions were, on the whole,

unimpeached by Petitioner.

2 5 . Following Mr. Moseley Ô s recommendation, Robert Parks, District 2 Ô s

d irector of t ransportation d evelopment, discussed with District 2 Secretary

Greg Evans the potential future demands on US 221 and the desire for

stronger pavement due to heavy truck traffic. Mr. Parks is responsible for

multiple stages of the project process, incl uding initial planning, final design ,

and project letting. Mr. Parks normally relies on recommendations made

from SMO.

2 6 . Mr. Parks discussed the recommendation for the use of high polymer

binder with Christopher Dicks, who is the District 2 roadway desi gn

engineer. Mr. Dicks manages the department that produces design work in -

house for Department projects. Because the recommendation, if approved,

would require a change to the construction plans, it was necessary for

Mr. Dicks to weigh in on the proposed change.

2 7 . When considering the recommendation, Mr. Dicks noted that approval

of a supplemental agreement with the low bidder for the use of high polymer

binder in T2789 would likely result in a cost ove rrun for the project, and that

reletting the contrac t would avoid such an overrun. Mr. Dicks opined that a

rejection of all bids, and a future reletting of the project, was the more fiscally

responsible alternative because it placed the Department in a better position

to control costs. Mr. Dicks concurred w ith Mr. Moseley Ô s recommendation to

use high polymer binder in T2789 and recommended the Department reject

all bids received in the procurement of T2789.

2 8 . Mr. Parks discussed the recommendation with Jamie Driggers, Jr. ,

who works for the Department as the District 2 p rogram m anagement

a dministrator and supervises the w ork p rogram, p rogram s ervices, l ocal

p rograms, and s pecifications and e stimates o ffice.

2 9 . The s pecifications and e stimates o ffice is the conduit between the

roadway design and the contra cts office, and is responsible for delivering to

the contracts office the plans, specifications, and supporting documents for a

project.

30 . After consulting with Mr. Parks, Mr. Driggers communicated to Ronda

Taylor in the Department Ô s c entral o ffice that it was the District Ô s intention

to recommend the rejection of all bids. Ms. Taylor produced a bid analysis

memorializing th e DepartmentÔs decision to reject all bids, and noted therein

that the justification for the decision was because Ñ an error was found in the

pavement design .Ò M r. Driggers testified that he did not recall using th e

quoted t erminology in his discussion with Ms. Taylor and speculated that

Ms. Taylor developed the language for the justification based on her personal

interpretation of their discussion. Neither party called Ms. Taylor to testify in

the instant proceeding.

3 1 . In support of its contention that the Department acted in an arbitrary

manner when deciding to reject all bids for T2789, Petitioner cites several

Ñcomparator projectsÒ where, according to Petitioner, similar conditions to

T2789 exist and the Department elected not to use high polymer binder.

While the evidence shows instances where the Department elected to either

use or not use high polymer binder for other projects, P etitionerÔs evidence is

insufficient to prove that the DepartmentÔs decision to reject all bids was

done in an arbitrary manner.

3 2 . For example, comparator projects T3746 and E3T54 are projects

located in Jefferson County, which is in the DepartmentÔs Di strict 3, and for

these projects the northbound traffic on US 221 north of Interstate 10 is less

than the traffic on US 221 in Taylor County. The DepartmentÔs materials

recommendations for projects T2714 and T2721 were made in January of

2016, and August 2 015 for project T2691. In 2015 and 2016, high polymer

binder was still in the developmental stage and not yet incorporated into the

DepartmentÔs standard specifications for road and bridge construction.

3 3 . While it appears that M - CORES is no longer viable , there is no

indication that Mr. Moseley, or any of the other decision makers herein, were

aware of the demise of the program when the decision was made to reject all

bids so as to allow for the use of high polymer binder on project T2789. The

remaining b ullet points contained in Mr. MoseleyÔs memorandum of

February 4, 2021, were challenged by Petitioner, but not impeached to such

an extent that the opinions expressed were proven irrational or

unreasonable.

C ONCLUSIONS OF L AW

3 4 . DOAH has jurisdiction ove r the subject matter of, and parties to, this

proceeding, pursuant to sections 120.569 and 120.57(1) and (3) , Florida

Statutes (202 1 ). 5

3 5 . The bid protest filed by Petitioner w as timely filed, and Petitioner ha s

otherwise complied with all rules and laws relating to the filing of the bid

protest .

3 6 . Petitioner , as a responder to the Bid Solicitation Notice, and as low

bidder of the C ontract until the Department decided to reject all bids , ha s

standing to challenge the DepartmentÔs decisions at issue.

3 7 . Th is proceeding is governed by section 120.57(3), which states in

pertinent part:

Agencies subject to this chapter shall use the

uniform rules of procedure, which provide

procedures for the resolution of protests arising

from the contract solicitation or award process.

Such rules shall at least provide that:

(a) The agency shall provide notice of a decision or

intended decision concerning a solicitation, contract

award, or exceptional purchase by electronic

posting. This notice shall contain the followin g

5 All su bsequent references to Florida Statutes will be to the 2021 version, unless otherwise

indicated.

statement: ÑFailure to file a protest within the time

prescribed in section 120 . 57 (3), Florida Statutes, or

failure to post the bond or other security required

by law within the time allowed for filing a bond

shall constitute a waiver of proceedings unde r

chapter 120, Florida Statutes.Ò

(b) Any person who is adversely affected by the

agency decision or intended decision shall file with

the agency a notice of protest in writing within

72 hours after the posting of the notice of decision

or intended decisi on. With respect to a protest of

the terms, conditions, and specifications contained

in a solicitation, including any provisions governing

the methods for ranking bids, proposals, or replies,

awarding contracts, reserving rights of further

negotiation, or modifying or amending any

contract, the notice of protest shall be filed in

writing within 72 hours after the posting of the

solicitation. The formal written protest shall be

filed within 10 days after the date the notice of

protest is filed. Failure to fi le a notice of protest or

failure to file a formal written protest shall

constitute a waiver of proceedings under this

chapter. The formal written protest shall state with

particularity the facts and law upon which the

protest is based. Saturdays, Sundays, and state

holidays shall be excluded in the computation of

the 72 - hour time periods provided by this

paragraph.

(c) Upon receipt of the formal written protest that

has been timely filed, the agency shall stop the

solicitation or contract award process un til the

subject of the protest is resolved by final agency

action, unless the agency head sets forth in writing

particular facts and circumstances which require

the continuance of the solicitation or contract

award process without delay in order to avoid a n

immediate and serious danger to the public health,

safety, or welfare.

(d)1. The agency shall provide an opportunity to

resolve the protest by mutual agreement between

the parties within 7 days, excluding Saturdays,

Sundays, and state holidays, after r eceipt of a

formal written protest.

2. If the subject of a protest is not resolved by

mutual agreement within 7 days, excluding

Saturdays, Sundays, and state holidays, after

receipt of the formal written protest, and if there is

no disputed issue of mater ial fact, an informal

proceeding shall be conducted pursuant to

subsection (2) and applicable agency rules before a

person whose qualifications have been prescribed

by rules of the agency.

3. If the subject of a protest is not resolved by

mutual agreement within 7 days, excluding

Saturdays, Sundays, and state holidays, after

receipt of the formal written protest, and if there is

a disputed issue of material fact, the agency shall

refer the protest to the division by electronic means

through the division's website for proceedings

under subsection (1).

* * *

(f) In a protest to an invitation to bid or request for

proposals procurement, no submissions made after

the bid or proposal opening which amend or

supplement the bid or proposal shall be consid ered.

In a protest to an invitation to negotiate

procurement, no submissions made after the

agency announces its intent to award a contract,

reject all replies, or withdraw the solicitation which

amend or supplement the reply shall be

considered. Unless ot herwise 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 agencyÔ s

proposed a ction is contrary to the agencyÔ s

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

the solicitation specifications. The standard of proof

for such proceedings shall be whether the propose d

agency action was clearly erroneous, contrary to

competition, arbitrary, or capricious. In any bid -

protest proceeding contesting an intended agency

action to reject all bids, proposals, or replies, the

standard of review by an administrative law judge

sh all be whether the agency Ô s intended action is

illegal, arbitrary, dishonest, or fraudulent.

3 8 . As the part y challenging the Department Ô s proposed agency action,

Petitioner bear s the burden of proof in th is proceeding. § 120.57(3)(f), Fla.

Stat.; State C ontracting and EngÔ g. Corp. v. DepÔ t of Transp. , 709 So. 2d 607,

609 (Fla. 1st DCA 1998).

3 9 . As an overarching principle, public bodies in Florida are legislatively

afforded wide discretion in soliciting and accepting bids and proposals, and

their procure ment decisions, when based on an honest exercise of that

discretion, will not be overturned, even if the decisions may appear erroneous

and even if reasonable persons may disagree. Liberty C n ty. v. BaxterÔ s

Asphalt & Concrete, Inc. , 421 So. 2d 505, 506 (Fl a. 1982).

40 . The standard of review applicable to the Department Ô s action of

rejecting all proposals is whether that action was illegal, arbitrary, dishonest,

or fraudulent. DepÔ t of Transp. v. Groves - Watkins Constructors , 530 So. 2d

912, 914 (Fla. 1988). Neither section 120.57 nor any related statutory

provisions define the terms Ñillegal, arbitrary, dishonest, or fraudulent.Ò

4 1 . This legal standard imposes a stringent burden. As the court stated in

Gulf Real Properties, Inc. v. Dep artment of Health and Rehabilitative

Services , 687 So. 2d 1336, 1338 (Fla. 1st DCA 1997), an agencyÔ s rejection of

all bids must stand, absent a showing that the purpose or effect of the

rejection is to defeat the object and integrity of competitive bidding.

4 2 . Where an agency , in deciding to reject all replies, has engaged in an

honest, lawful , and rational exercise of its Ñ wide discretion in soliciting and

accepting bids for public improvements Ò its decision will not be overturned,

even if it may appear erroneous and even if reasonable persons may disagree.

Groves - Watkins Constructors, 530 So. 2d at 913 (quoting from Baxter Ô s

Asphalt & Concrete, Inc. , 421 So. 2d at 507).

4 3 . As previously noted, PetitionerÔs sole contention in its Formal Notice of

Bid Protest is that ÑFDOTÔs d ecision to reject all bids is arbitrary as defined

in section 120.57(3), Florida Statutes.Ò An arbitrary decision is one that is not

supported by facts or logic, or is despotic. Agrico Chem. Co. v. Dep Ô t of Envtl.

Reg. , 365 So. 2d 759, 763 (Fla. 1st DCA 19 78).

4 4 . An agencyÔ s discretion to reject all bids is not unbri dled, however. In

applying the ÑarbitraryÒ standard of review, it must be determined whether

the agency has: (1) considered all the relevant factors; (2) given actual, good

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

progress from consideration of each of these factors to its final decision. Adam

Smith Enters . , Inc. v. State DepÔ t of Envtl. Reg. , 553 So. 2d 1260, 1273 (Fla.

1st DCA 1989).

4 5 . The foundation of t he DepartmentÔs rationale for its decision to reject

all bids is unambiguously set forth in Howard MoseleyÔs email of February 4,

2021. While Petitioner has made it clear that it disagrees with Mr. MoseleyÔs

opinions, Petitioner has, nevertheless, failed t o impeach Mr. MoseleyÔs

opinions to the point to where those opinions can be characterized as a

pretext for anti - competitive conduct by the Department.

4 6 . The evidence demonstrates that the DepartmentÔs decision to use high

polymer binder for T2789 was we ll reasoned, and developed in good faith

after appropriate consideration of myriad relevant factors related to the

project.

4 7 . For the reasons discussed above, Petitioner failed to meet its burden to

show that the DepartmentÔs action of rejecting all bids was Ñarbitrary.Ò

R ECOMMENDATION

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

hereby Recommended that the Department of Transportation issue a final

order in DOAH Case No. 21 - 2038 finding that the rejection of all bids

submitted for project T2789 was not arbitrary, and dismissing the petition.

D ONE A ND E NTERED this 25th day of October , 2021 , in Tallahassee, Leon

County, Florida.

S

L INZIE F. B OGAN

Administrative Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 25th day of October , 2021 .

C OPIES F URNISHED :

Douglas Dell Dolan, Esquire Thomas J. Guilday, Esquire

Department of Transportation Guilday Law, P.A.

605 Suwannee Street , MS 58 1983 Centre Pointe B oulevar d, Suite 200

Tallahassee, Florida 32399 - 0450 Tallahassee, Florida 32308

George Spears Reynolds, Esquire Amber Greene, Clerk of Agency Proceedings

Department of Transportation Department of Transportation

605 Suwannee Street , MS 58 Haydon Burns Building

Tallahassee, Florida 32399 - 0450 605 Suwannee Street, MS 58

Tallahassee, Florida 32399 - 0450

Rafael Garcia, Interim General Counsel

Department of Transportation Kevin J. Thibault, P.E., Secretary

Haydon Burns Buil ding Department of Transportation

605 Suwannee Street, MS 58 Haydon Burns Building

Tallahassee, Florida 32399 - 0450 605 Suwannee Street, MS 57

Tallahassee, Florida 32399 - 0450

N OTICE OF R IGHT T O S UBMIT E XCEPT IONS

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.