88-002898BID Hewitt Contracting Company, Inc. vs. Department Of Transportation Status: Closed Recommended Order on Wednesday, August 24, 1988.

Summary: Agency has wide discretion to rule on bidder's competence. Here agency's decision to award to company which may not have broad experience still supportable

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HEWITT CONTRACTING COMPANY, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 88-2898BID

)

STATE OF FLORIDA, DEPARTMENT )

OF TRANSPORTATION, )

)

Respondent, )

and )

)

VOGEL BROS. BUILDING CO., )

)

Intervenor. )

___________________________________)

RECOMMENDED ORDER

A hearing was held in this case in Tallahassee, Florida on June 30, 1988,

before Arnold H. Pollock, Hearing Officer. The issue for consideration was

whether Vogel Brothers Building Co., awardee of Department of Transportation

Project No. 105003631, is a qualified bidder.

APPEARANCES

For Petitioner: Crit Smith, Esquire

215 South Monroe Street

Tallahassee, Florida 32301

For Respondent: Brant Hargrove, Esquire

605 Suwannee Street

Tallahassee, Florida 32302

For Intervenor: Ronald E. Cotterill, Esquire

1519 North Dale Mabry, Suite 100

Lutz, Florida 33544

BACKGROUND INFORMATION

On May 9, 1988, Respondent, Department of Transportation, gave notice of

its intent to award project No. 105003631, a minor bridge construction project

in Hillsborough County, Florida, to Vogel Brothers Building Co., the apparent

low bidder. On May 20, 1988, the second low bidder, Hewitt Contracting Company,

Inc., filed a formal protest with the Department of Transportation and, on June

8, 1988, the matter was forwarded to the Division of Administrative Hearings for

the appointment of a Hearing Officer. One week later, the awardee, Vogel

Brothers Building Co., filed its motion to intervene, which was granted, and on

June 16, 1988, the matter was set for hearing by the undersigned for June 30,

1988, at which time it was held as scheduled.

At the hearing, Petitioner presented the testimony of Charles W. Goodman,

an Area Engineer and Qualification Engineer for the Department of

Transportation; Andrew M. Clark, an expert in minor bridge construction and vice

president of a construction company dealing in heavy bridge construction; Cecil

W. Barrett, president of a construction company and expert in minor bridge

construction; and Howard H. Hewitt, owner and manager of Petitioner company.

Petitioner introduced Petitioner's Exhibits 1 through 4.

Respondent presented the testimony of Thomas S. Kayser, Pre-qualification

Engineer for the Department of Transportation, and introduced Respondent's

Exhibit A. Intervenor presented the testimony of Daniel G. Vogel, vice President

of Intervenor company, by deposition which was introduced as Intervenor's

Exhibit I.

Subsequent to the hearing, a transcript was filed. All parties submitted

proposed Findings of Fact which have been ruled upon in the Appendix to this

Recommended Order. Petitioner submitted its own and Respondent and Intervenor

made a joint submittal.

FINDINGS OF FACT

1. Both Hewitt Contracting Company, Inc., (Hewitt), and Vogel Brothers

Building Company, (Vogel), submitted a bid on Florida Department of

Transportation, (FDOT) project number 105003631, for the construction of a minor

bridge in Hillsborough County, Florida.

2. Both Hewitt and Vogel had been pre-qualified by FDOT to bid on its

projects, The determination of pre-qualification was done for FDOT by Charles

Goodman, a registered professional engineer. Pre-qualification is not done on a

project by project basis but instead is determined on a particular work category

in advance.

3. Vogel was low bidder for the project in issue and Hewitt was second low

bidder. Hewitt timely filed a notice of protest and formal protest based on its

claim that Vogel was not properly pre-qualified for minor bridge construction.

4. Vogel has no experience building bridges for FDOT or for any other

state and the instant project was the first project for FDOT in which Vogel had

bid as a prime contractor. However, the company has been in business in

Wisconsin since the 1920's and has performed numerous construction projects at

various locations throughout the country. Those that have required heavy

pouring of concrete have been primarily parking garages, pedestrian walkways,

and wastewater treatment plants. Within those types of categories, several

construction techniques were used which are similar if not identical to those

used in bridge building. Vogel has, however, no pile driving experience which

would be used in this project.

5. Vogel does not own all of the equipment that would be necessary to

construct this project. Ownership is not required, however, so long as the

applicant is willing and able to provide the equipment through other means such

as lease or rental. Though Vogel has presented no evidence of specific rental

agreements, it has the financial capacity to rent the required equipment and

there is little doubt it could do so.

6. By the same token, Vogel does not currently employ any personnel in

Florida who have experience in the construction of bridges similar to the

project under consideration nor does the company presently employ any

professional engineers totally registered as such in Florida. It does, however,

employ professional engineers registered elsewhere with experience that would be

pertinent to this project and, as it has done in the past, would, if necessary,

bring those personnel to Florida to assist in this project.

7. During the time Mr. Goodman was performing as a qualification engineer,

he reviewed all 900 contractors doing business with FDOT at least twice and

some, three times. In performing the qualification review, he looked only at

the applications of the various contractors and did not talk to any of the

company representatives. By the same token, he did not discuss the applications

with anyone in the department. The decision on approval was his alone.

8. Mr. Goodman was aware of Vogel's prior experience and the fact that it

had constructed several pedestrian overpasses and recognized that the company's

experience with the classical type bridge such as is involved here is limited.

However, he was satisfied that while Vogel does not own all of the equipment

necessary for completion of this project, it does own enough equipment to

complete part of the work and the remainder of the items on the FDOT equipment

list which it does not own, it can procure from outside sources.

9. He is also aware of the fact that Vogel does not have any experience

driving piles of the size required for this project. It does, however; do mass

pours of concrete and is involved in larger construction projects such as water

and sewage treatment plants. Most of its experience is in the construction of

commercial buildings in Wisconsin.

10. In his analysis, Mr. Goodman used an evaluation sheet in conjunction

with the table contained in Rule 14-22, F.A.C., to come up with an ability

factor. This does not, however, have any substantial impact on approval. In

the instant case, out of a possibility of 25 points, Vogel was awarded 0 points

on bridge construction as it pertained to both completed and ongoing projects.

In fact, Vogel was awarded points only in those experience areas not related to

bridge projects. As to organization and management, it received 10 points in

each out of a possible 15 points for each. These awards related to the

company's skills in general. Since Mr. Goodman's consideration was based only

on what was contained in the application, he does not know if any personnel have

experience in constructing bridges as are called for in this project. His

decision was based on his conclusion that Vogel had done similar work on other

projects equivalent to the least of the qualifications for bridges, (pedestrian

overpasses, parking garages, and water plants), which involved techniques

similar to those used in construction of the least complex bridge. This

information upon which Mr. Goodman relied came from Vogel's brochure and he is

not personally aware of the projects or when and where they were constructed.

11. The FDOT policy was to require an applicant to meet the equipment and

experience even for minor bridges, and in this case, in Mr. Goodman's opinion,

Vogel, which had built box culverts which are legally defined as a minor bridge

at a low level, qualified.

12. In making their analyses, FDOT evaluators are required to look at

minimums, not optimums, and Vogel's experience, in the opinion of Mr. Goodman,

satisfied the requirements at the lowest level. Even though this project

involved procedures it had not previously done, Vogel's qualification was

determined on the basis of general requirements and not on the basis of the

specific requirements of this project which had not been identified at the time

qualification was established. Mr. Goodman did not verify any of the statements

made in Vogel's application with Vogel or any other individual, nor did he

attempt to contact any reference or other party to inquire regarding Vogel's

ability to construct the project.

13. Mr. Goodman's decision to qualify Vogel was reviewed, prior to the

hearing, by Mr. Kayser, the current qualification engineer for FDOT. He looked

at Vogel's application and based on what he saw, (their ability to procure the

required equipment; the types of projects they have completed in the past; and

the intricate techniques involved therein), is of the opinion that Vogel is

capable of completing this project successfully. If he were doing a

qualification evaluation on Vogel today, he might require some verification of

certain items, and request evaluations of the quality of the work they have

done, but that would be all. The fact that most of the work Vogel has done is

out of the state does not bother him, nor does the fact that the contractor is

from out of state. Many of the successful contractors with whom FDOT has done

business are in the same category. Had Vogel built only buildings, he might

have had some concern. However, the diversity of their projects, including many

where the work and techniques used are similar to that used in bridge

construction, makes him comfortable with them, and he would not attempt to

decertify or disqualify Vogel.

14. In support of Petitioner's point of view, Mr. Andrew Clark, executive

vice president of a general contracting firm specializing in heavy bridge

construction, feels Vogel does not have the experience to construct bridges,

major or minor. While it can pour concrete, it does not have the people

qualified and necessary to do bridge work. There is more to building a bridge

than pouring concrete and Vogel does not appear, to Mr. Clark, to have the

experience or equipment sufficient to properly finish the concrete surface. For

example, though it might be able to rent a screed, it does not have the people

qualified to use it properly. It does not have the experience to drive piles

and it does not have the equipment necessary to do that job nor do its proposed

suppliers of rental equipment. Mr. Clark, however, is a competitor and was, in

fact, a bidder on this project. In the event the award to Vogel is set aside

and a re-bid authorized, Mr. Clark's company would be in a position to bid

again.

15. Mr. Clark also looked at the equipment listed in Vogel's brochure and

determined that most of the equipment on that list is not used in construction

of either major or minor bridges. By the same token, the projects listed on

Vogel's experience list do not qualify it to do bridge work since they are not

similar and the techniques utilized therein are not necessarily the same.

16. Mr. Clark is of the opinion that the project in issue is not the

typical minor bridge project. The design is somewhat different and requires the

use of different techniques. He feels Vogel's experience would not prepare it

to successfully accomplish the project. Though FDOT follows up its award by

numerous inspections during the construction phase, in his opinion these

inspections are inadequate since they generally relate to the materials being

used by the contractor and not to the contractor's workmanship.

17. Mr. Clark's opinions are supported by those of Mr. Barrett, president

of another construction company which deals primarily in bridge construction.

In Mr. Barrett's opinion, Vogel's experience in construction of water and sewage

treatment plants and parking garages does not qualify it to build bridges since

the company has no expertise in the techniques need for that type of

construction.

18. Petitioner has been qualified to do minor bridge construction since

1962 and has constructed approximately 75 minor bridges within this state. It's

personnel include numerous people who have extensive experience in pouring

bridge decks and driving bridge pilings. It has the needed equipment, including

cranes, pile drivers, welding equipment, and screeds, and more important, the

experienced people who know how to use it properly.

19. Having reviewed Vogel's prior projects and equipment owned,

Petitioner's owner, Mr. Hewitt, cannot see where Vogel is qualified by

experience or equipment to do bridge construction. In his opinion, Vogel is a

building contractor, not a bridge builder. He is satisfied that the skills

developed in general contracting do not qualify an individual to do bridge work.

These skills are different, and the level of subcontracting is different. In

addition, construction standards and tolerances are much stricter in bridge

projects than in other general contracting projects.

20. Petitioner raises a legitimate question regarding Vogel's ability to

do this particular job. However, it's evidence is in the form of testimony of

individuals who, though individuals of long experience in their fields, were not

offered as experts in the area. Further, all except one, have an interest in

the outcome of this case. On the other hand, Vogel has been shown to be a

competent and successful builder and there is no evidence to show that the pre-

qualification process utilized by FDOT here was either inappropriate or

improperly applied.

CONCLUSIONS OF LAW

21. The Division of Administrative Hearings has jurisdiction over the

parties and subject matter in this case. Section 120.57(1), Florida Statutes.

22. Petitioner has standing to protest the award of the subject contract

to the intervenor, Capeletti Bros. v. State Department of General Services, 432

So.2d 1359 (Fla. 1st DCA 1983), and Petitioner timely filed its notice of

protest and its formal protest.

23. Florida's pre-qualification process is provided for in Rule 14-22,

F.A.C.

24. The parties stipulated that the project in issue here is a minor

bridge as defined by Rule 14-22.003(2)(b), F.A.C. At Rule 14-22.003(2)(h),

F.A.C., the Department has provided:

The department considers the applicant to

be qualified based on the evaluation of

the applicant's organization, management,

work experience, and work performance,

and the adequacy of equipment to perform

a specific class of work.

25. Under the provisions of Rule 14-22.002(3), F.A.C., the applicant is

required to list in his application each major item of equipment owned by it

with make and model shown. Letters of intent to rent equipment or statements of

availability of equipment from affiliated companies may be used for obtaining

classes of work.

26. In addition, Rule 14-22.0041, F.A.C., outlines the factors which the

department must consider in determining competency for qualification and

mandates the department to make such inquiries and investigations as are deemed

necessary to verify the applicant's statements and to determine whether the

applicant is competent, responsible, and financially capable to be qualified.

Among these factors are that the applicant possess the necessary organization

and management along with experience to do the job; that it have adequate

equipment to do the work; and that it demonstrate a satisfactory work

performance record.

27. Applicants who have not qualified within the past two years, (Vogel),

must provide letters of recommendation from at least two firms who have

knowledge of the applicant's key personnel and work performance sufficiently

detailed to assist in rating the applicant's ability to do the job under

consideration.

28. An additional requirement is that applicants who have not qualified in

the past two years be rated as to organization and management and work

experience. FDOT has, based upon the information presented to it by the

applicant, made the determination that Vogel should be qualified. The agency

has wide discretion in accepting bids for public improvement. When the

discretion is exercised honestly, the agency's decision will not be overturned

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

Liberty County v. Baxter's Asphalt Concrete, 421 So.2d 505 (Fla. 1982). Here,

there is room for question regarding whether Vogel's experience qualifies it for

bridge construction work of even a minor nature. Nonetheless, the evidence

shows that the company is an old and reputable firm which has been active in the

construction business for better than 60 years. It's reputation is good and

there was no showing that any misconduct or circumstances exist which would make

it necessary that Vogel be disqualified. As Mr. Kayser indicated, while he may

not have made the decision to grant qualification initially, based on what he

has seen, he could not and would not attempt to decertify or disqualify the

company. Further, there was no showing that the department's action was

motivated by any dishonest or venal considerations.

29. In light of the above, there appears to be no basis for concluding

other than that Vogel Brothers Building Company is a responsible bidder.

RECOMMENDATION

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

therefore:

RECOMMENDED that a Final Order be entered awarding the contract on State

Project No. 105003631 to Vogel Brothers Building Company.

RECOMMENDED this 24th day of August, 1988, at Tallahassee, Florida.

___________________________________

ARNOLD H. POLLOCK, Hearing Officer

Division of Administrative Hearings

The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 24th day of August, 1988.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-2898BID

The following constitutes my specific rulings pursuant to Section

120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted

by the parties to this case.

FOR THE PETITIONER

1. & 2. Accepted and Incorporated herein

3. & 4. Accepted and Incorporated herein

5. - 8. Accepted and Incorporated herein

9. Accepted except for the statement that letters from rental companies

were not submitted

10. & 11. Accepted and Incorporated herein

12. - 14. Accepted and Incorporated herein

15. Accepted but not probative of any material fact

16. & 17. Accepted but not probative of any material fact

18. Accepted but incomplete

19. Rejected as contra to the weight of the evidence

20. Rejected as a comment on the evidence and not a Findings of Fact

21. Accepted but not probative of any material fact

22. Rejected as irrelevant

23. & 25. Rejected as contra to the weight of the evidence

24. Accepted but not probative of any material fact

FOR THE RESPONDENT AND INTERVENOR

1. & 2. Accepted and incorporated herein

3. & 4. Accepted and incorporated herein

5. & 7. Accepted and incorporated herein

6. Accepted and incorporated herein

8. Accepted

9. & 11. Accepted and incorporated herein

10. Accepted

12. Accepted and incorporated herein

13. Not established

14. Accepted but not probative of any material fact

15. Accepted and incorporated herein

16. Accepted and incorporated herein

COPIES FURNISHED:

Crit Smith, Esquire

215 South Monroe Street

Tallahassee, Florida 32301

Brant Hargrove, Esquire

Department of Transportation

605 Suwannee Street

Tallahassee, Florida 32302

Ronald E. Cotterill, Esquire

1519 North Dale Mabry, S-100

Lutz, Florida 33544

Kaye N. Henderson, Secretary

Department of Transportation

Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399-0450

Thomas H. Bateman, III

General Counsel

Department of Transportation

562 Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399-0450