89-006844BID
D. E. Wallace Construction Corporation vs.
Board Of Regents
Status: Closed
Recommended Order on Monday, February 26, 1990.
Recommended Order on Monday, February 26, 1990.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8D. E. WALLACE CONSTRUCTION CORPORATION, )
14)
15Petitioner, )
17)
18vs. ) CASE NO. 89-6844BID
23)
24FLORIDA BOARD OF REGENTS, )
29)
30Respondent, )
32and )
34)
35ANGLIN CONSTRUCTION COMPANY, )
39)
40Intervenor. )
42________________________________________)
43RECOMMENDED ORDER
45Pursuant to notice, a formal hearing was held in this case on January 18,
591990, in Tallahassee, Florida, before the Division of Administrative Hearings,
69by its designated Hearing Officer, Diane K. Kiesling.
77APPEARANCES
78For Petitioner: C. Gary Moody
83Attorney at Law
86Post Office Drawer 2759
90Gainesville, Florida 32602
93For Respondent: Jane Mostoller
97Assistant General Counsel
100Gregg A. Gleason
103General Counsel
105Florida Board of Regents
109325 West Gaines Street
113Suite 1522
115Tallahassee, Florida 32399-1950
118For Intervenor: Raymond M. Ivey
123Attorney at Law
126703 North Main Street
130Suite A
132Gainesville, Florida 32601
135STATEMENT OF THE ISSUES
139The issues are whether the Petitioner, D.E. Wallace Construction Corp., is
150the lowest responsive bidder on project BR-116; whether the Respondent, the
161Florida Board of Regents, correctly rejected the bid submitted by the
172Petitioner; and whether the bid on BR-116 should be awarded to the Intervenor,
185Anglin Construction Company.
188PRELIMINARY STATEMENT
190The Petitioner presented the testimony of Donald E. Wallace. The
200Respondent presented the testimony of Larry Ellis, Patricia Jackson, and Murdock
211Shaw. The Intervenor presented the testimony of Dennis Ramsey. Joint Exhibits
2221-9 were admitted in evidence.
227The transcript of the proceedings was filed on February 9, 1990. All three
240parties timely filed proposed findings of fact and conclusions of law. All
252proposed findings of fact and conclusions of law have been considered. A
264specific ruling on each proposed finding of fact is made in the Appendix
277attached hereto and made a part of this Recommended Order.
287FINDINGS OF FACT
2901. Respondent issued a Call For Bids, in Florida Administrative Weekly,
301Volume 15, No. 38, September 22, 1989, for a construction project referred to as
315the Reitz Union Addition, BR-116, University of Florida. The Call For Bids
327provided that at least 15 percent of the project contract amount would be
340expended with minority business enterprises certified by the Florida Department
350of General Services as set forth under the Florida Small and Minority Business
363Assistance Act, Chapter 287, Florida Statutes. If 15 percent were not
374obtainable, the State University System would recognize good faith efforts by
385the bidder.
3872. The Call For Bids provided that all bidders must be qualified at the
401time of their Bid Proposal in accordance with the Instructions to Bidders,
413Article B-2. The Instructions to Bidders, Article B-2, provides in pertinent
424part that in order to be eligible to submit a Bid Proposal, a bidder must meet
440any special requirements set forth in the Special Conditions of the Project
452Manual.
4533. The Project Manual Index provides that "L-Special Conditions" pages are
464numbered separately.
4664. The Project Manual, Instructions to Bidders B-23, as revised by Section
478L, Special Conditions, Supplement #1, at supplement page 2, provides that the
490contract will be awarded by Respondent for projects of $500,000 or more, to the
505lowest qualified bidder, provided it is in the best interest of the Respondent
518to accept it. The award of the contract is subject to the provisions of Section
533237.0945, Florida Statutes, and the demonstration of "good faith effort" by any
545bidder whose Bid Proposal proposes less than 15 percent participation in the
557contract by MBEs. Demonstrated good faith effort as set forth in the Special
570Conditions would be in lieu of all or part of the 15 percent requirement. The
585contract award will be made to the bidder that submits the lowest responsive
598aggregate bid within the preestablished construction budget. The aggregate bid
608shall consist of the base bid plus accepted additive alternate bids, or less
621accepted deductive alternate bids, applied in the numerical order in which they
633are listed on the bid form.
6395. The Project Manual, Instructions to Bidders, B-25 at page 17, provides
651that the Respondent/Owner has adopted a program for the involvement of minority
663business enterprises in the construction program. The application of that
673program is set forth in the Special Conditions of the Project Manual. The
686Project Manual, Instructions to Bidders, B-26 at page 17, provides that bidders
698shall be thoroughly familiar with the Special Conditions and shall strictly
709adhere to their requirements.
7136. A representative from D.E. Wallace Construction Corp., Ms. Betsy
723Wallace, attended the pre-solicitation/pre-bid meeting on October 5, 1989. One
733of the purposes of the pre-solicitation/pre-bid meeting was to explain the MBE
745program to the general contractors and others in attendance. Mr. Larry Ellis,
757the minority purchasing coordinator for the University of Florida, provided the
768contractors with information as to how they could obtain the 15 percent minority
781participation requirement or how they could satisfy the requirements of the good
793faith effort. Mr. Ellis informed those in attendance that the listing of
805subcontractors form required that the bidder reveal the 15 percent MBE
816participation on the face of the form, that such form was located in the Special
831Conditions section, and that the form must be completed and submitted at the
844time of bid opening, if in fact the general contractor was seeking to show he or
860she had met the 15 percent participation requirement.
8687. Sealed bids for BR-116 were opened on October 19, 1989. Petitioner was
881the lowest monetary bidder. Anglin Construction Company, Intervenor, was the
891second lowest monetary bidder.
8958. Petitioner was notified by letter dated October 24, 1989, that its bid
908proposal was found not to be in compliance with the requirements of the Project
922Manual because an incorrect list of subcontractors form was submitted, that
933Petitioners proposed MBEs were not identified at the time of bid opening, and
946that Petitioner failed to show a good faith effort in meeting the 15 percent MBE
961participation.
9629. By letter dated October 30, 1989, the University of Florida recommended
974to the Respondent that the construction contract for BR-116 be awarded to the
987Intervenor for the base bid and alternates 1 through 9 in the amount of $991,272
100310. The Project Manual for BR-116 contains Section L, Special Conditions,
1014which contains Supplement 1, with pages numbered supplemental pages 1 through
102510. The Call for Bids provides that bids must be submitted in full and in
1040accordance with the requirements of the drawings and Project Manual. The
1051Project Manual provides that bidders are required to examine carefully the
1062drawings, specifications, and other bidding documents and to inform themselves
1072thoroughly regarding any and all conditions and requirements that may in any
1084manner affect the work. Mr. D.E. Wallace testified that he is a certified
1097general contractor licensed by the State of Florida for 13 years and that as
1111part of his licensing examination he was required to demonstrate proficiency in
1123reading and understanding bidding documents, manuals, instructions, plans, and
1132drawings. Mr. Wallace testified that he skimmed over the Project Manual and the
1145Special Conditions section but that he really did not review them.
115611. Petitioner submitted its list of subcontractors on an outdated form,
1167dated January 20, 1988, contained in the Project Manual at Section D, page 21.
1181In Supplement #1 of Section L, Special Conditions, at page 1, of the Project
1195Manual, the bidder is instructed to delete the January 29, 1988, version of the
1209subcontractors form and substitute in lieu thereof the List of Subcontractors
1220form included in the Supplement dated June 15, 1988. The form was revised to
1234allow contractors who could not meet the MBE requirements to show good faith
1247effort in obtaining participation, to restrict MBEs, to those certified by the
1259Florida Department of General Service, and to eliminate any bid shopping
1270attempts by requiring that contractors reveal their MBE participation at the
1281timed of the bid opening.
128612. Petitioner admitted that the wrong list of subcontractors form was
1297used when its bid was submitted.
130313. The Respondents Project Manual contains a licensed version of a
1314standard American Institute of Architects (AIA) document which could not be
1325revised without AIA permission. The revised list of subcontractors form and
1336revised MBE requirements were placed within the Special Conditions section of
1347the Project Manual, which did not require AIAs permission. It is not unusual,
1360in the construction industry, have supplemental or special conditions within a
1371project manual.
137314. The construction budget for this project was $1,096,800.
138415. Petitioner did not submit its MBE subcontractors at the time of bid
1397opening. Petitioner submitted its MBE plan on October 26, 1989, seven days
1409after bid opening.
141216. Petitioners MBE subcontractor participation was less than 15 percent
1422of the contract sum required for BR-116. The contract sum is comprised of the
1436base bid and the alternates for the project.
1444CONCLUSIONS OF LAW
144717. The Division of Administrative Hearings has jurisdiction of the
1457parties to and subject matter of these proceedings. Sections 120.53(5) and
1468120.57(1), Florida Statutes.
147118. Section 240.209(3)(n), Florida Statutes, provides in pertinent part,
1480that the Board of Regents shall adopt rules to administer a program for the
1494maintenance and construction of facilities in the State University System.
150419. The Florida Board of Regents promulgated Rule 6C- 14.021(2), Florida
1515Administrative Code, which provides in pertinent part:
1522(2) In order to be eligible to submit a bid
1532proposal, a firm must, at the time of receipt
1541of bids:
1543* * *
1546(d) Meet any special prequalification
1551requirements set forth in the project
1557specifications, including compliance with
1561requirements for minority business enterprise
1566participation.
1567* * *
1570(5) All projects will be publicly bid in
1578accordance with the provisions in the project
1585specifications. Except for informalities
1589which may be waived by the Chancellor or
1597designee, or by the university president or
1604designee for Minor Projects, a bid which is
1612incomplete or not in conformance with the
1619requirements of the specifications shall be
1625determined to be non-responsive and shall be
1632rejected. Award of contract will be made to
1640the firm determined to be qualified in
1647accordance with these rules which submits the
1654lowest and best priced proposal for the work
1662except that if it is in the best interest of
1672the State, all bids may be rejected and the
1681project may be bid again.
168620. The burden of proof to establish that it is entitled to the award of
1701the contract is upon the unsuccessful party. Florida Department of
1711Transportation v. J.W.C. Co., Inc., 396 So.2d 778 (Fla. 1st DCA 1981). The
1724challenging party has the burden to establish that the agency's award resulted
1736from illegality, fraud, oppression, or misconduct and was not the result of a
1749fair, full, and honest exercise of the agency's discretion. Liberty County v.
1761Baxter's Asphalt and Concrete, Inc., 421 So.2d 505 (Fla. 1982); Bay Plaza I v.
1775Dept. of Health and Rehabilitative Services, 11 FALR 2854 (April 11, 1989).
178721. An agency has broad discretion in soliciting and accepting bids, and a
1800decision based on the honest exercise of its discretion may not be overturned by
1814a court even if reasonable people may disagree with the outcome. C.H. Barco
1827Contracting Co. v. Department of Transportation, 483 So.2d 796 (Fla. 1st DCA
18391986); Liberty County v. Baxter's Asphalt and Concrete, Inc., 421 So.2d 505
1851(Fla. 1982).
185322. The APA provides the procedural mechanism for challenging an agency's
1864decision to award or reject bids. "[T]he scope of the inquiry is limited to
1878whether the purpose of competitive bidding has been subverted. In short, the
1890hearing officers sole responsibility is to ascertain whether the agency acted
1901fraudulently, arbitrarily, illegally, or dishonestly." Department of
1908Transportation v. Groves-Watkins, 530 So.2d 912, 914 (Fla. 1988).
191723. It is well established that the responsiveness of a bid is determined
1930as of the time the bids are made public. Palm Beach Group, Inc. v. Department
1945of Insurance and Treasurer, 10 FALR 5627, 5634 (Fla. Dept. of Insurance, 1988);
1958Harry Pepper & Associates v. City of Cape Coral, 352 So.2d 1190 (Fla. 2nd DCA
19731977).
197424. The Board of Regents, in the good faith exercise of its discretion,
1987determined that Petitioners bid was not responsive as submitted. Petitioner
1997failed to use the correct list of subcontractors form and failed to reflect its
2011MBE subcontractor participation requirements at the time of bid opening as
2022required by the Instructions to Bidders. Instead, Petitioner submitted its
2032proposed MBE participation plan seven days after the date of bid opening, in
2045contravention of the Instructions to Bidders and the Special Conditions of the
2057Project Manual. In E.M. Watkins & Company, Inc. v. Board of Regents, 414 So.2d
2071583 (Fla. 1st DCA 1982), the Court held that a bidder could not submit
2085subcontractor information after 48 hours of the bid opening. The Court further
2097declared that substituting subcontractors (bid shopping) should be discouraged
2106by requiring a list of subcontractors prior to the bid opening. Id. at 587. The
2121policy reason behind requiring a list of subcontractors is to prevent the unfair
2134bidding advantage one contractor derives from his failure to list required
2145subcontractors. Requiring the list of subcontractors at the bid opening
2155prevents competitive advantage, insures the quality of the subcontractors,
2164insures public confidence in the bidding process, and encourages future
2174competition. Id at 587.
217825. A bid which contains a material variance is unacceptableopabest
2188Foods, Inc. v. Dept. of General Services, 493 So.2d 50 (Fla. 1st DCA 1986).
220226. It is within the discretion of the Board of Regents whether or not to
2217reserve the right to grant a waiver of bid irregularities. Liberty City v.
2230Baxter's Asphalt and Concrete Inc., supra. Even when an agency reserves the
2242right to waive bid irregularities, it is within the agency's discretion to
2254determine whether or not a waiver is appropriate. Id.
226327. Failure to identify MBE subcontractor participation as required by the
2274Board of Regents bidding documents is a material defect of the bid and should
2288not be waived. See E. M. Watkins and Company v. Board of Regents, supra.
230228. An agency may not waive a material irregularity in a bid. Robinson
2315Electrical Co., Inc. v. Dade County, 417 So.2d 1032 (Fla. 3rd DCA 1982); Harry
2329Pepper & Associates v. City of Cape Coral, supra.
233829. The application of the above criteria establishes that the failure of
2350the Petitioner to submit the proper list of subcontractors form identifying its
2362proposed MBEs on the face of the form at the time of bid opening and the failure
2379to demonstrate good faith efforts in meeting the MBE require is a material
2392irregularity. The Board of Regents may not waive the deficiency.
240230. Petitioner argues that the forms provided in the Call For Bids are
2415contradictory. The facts do not support this contention. Both the Call For
2427Bids and the instructions given at the pre-bid meeting were clear. While
2439Petitioner characterizes its mistake as technical and argues that it amounts to
2451an elevation of form over substance, the facts and the law make it clear that
2466Petitioners failure was material its bid was unresponsive. The bid of
2477Petitioner was correctly rejected.
2481RECOMMENDATION
2482Based upon the foregoing Findings of Fact and Conclusions of Law, it is
2495RECOMMENDED that the Florida Board of Regents enter a Final Order rejecting
2507D.E. Wallace Construction Corporations bid for project BR-116, denying the
2517protest, and awarding the contract for project BR-116 to Anglin Construction
2528Company.
2529DONE and ENTERED this 26th day of February, 1990, in Tallahassee, Florida.
2541_________________________________
2542DIANE K. KIESLING
2545Hearing Officer
2547Division of Administrative Hearings
2551The DeSoto Building
25541230 Apalachee Parkway
2557Tallahassee, FL 32399-1550
2560(904) 488-9675
2562Filed with the Clerk of the
2568Division of Administrative Hearings
2572this 26th day of February, 1990.
2578APPENDIX TO RECOMMENDED ORDER
2582IN CASE NO. 89-6844BID
2586The following constitutes my specific rulings pursuant to Section 120.59(2),
2596Florida Statutes, on the proposed findings of fact submitted by the parties in
2609this case.
2611Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, D.E.
2622Wallace Construction Corp.
26251. Each of the following proposed findings of fact is adopted in
2637substance as modified in the Recommended Order. The number in parentheses is
2649the Finding of Fact which so adopts the proposed finding of fact: 6(7).
26622. Proposed findings of fact 1, 3-5, 7, and 8 are subordinate to the facts
2677actually found in this Recommended Order.
26833. Proposed findings of fact 2 and 9 are unsupported by the competent
2696substantial evidence.
2698Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Florida
2709Board of Regents
27121. Each of the following proposed findings of fact is adopted in substance
2725as modified in the Recommended Order. The number in parentheses is the Finding
2738of Fact which so adopts the proposed finding of fact: 1-16(1-16).
2749Specific Rulings on Proposed Findings of Fact Submitted by Intervenor, Anglin
2760Construction Company
27621. Each of the following proposed findings of fact is adopted in substance
2775as modified in the Recommended Order. The number in parentheses is the Finding
2788Of Fact which so adopts the proposed finding of fact: 2(6); 5,(8); and 6(16).
28032. Proposed findings of fact 1, 3, and 4 are subordinate to the facts
2817actually found in this Recommended Order.
2823COPIES FURNISHED:
2825C. Gary Moody
2828Attorney at Law
2831Post Office Drawer 2759
2835Gainesville, Florida 32602
2838Jane Mostoller
2840Assistant General Counsel
2843Gregg A. Gleason
2846General Counsel
2848Florida Board of Regents
2852325 West Gaines Street, Suite 1522
2858Tallahassee, Florida 32399-1950
2861Raymond M. Ivey
2864Attorney at Law
2867703 North Main Street, Suite A
2873Gainesville, Florida 32601
2876Chancellor Charles B. Reed
2880State University System of Florida
2885107 West Gaines Street
2889Tallahassee, Florida 32399-1950
2892=================================================================
2893AGENCY FINAL ORDER
2896=================================================================
2897STATE OF FLORIDA
2900DIVISION OF ADMINISTRATIVE HEARINGS
2904D. E. WALLACE CONSTRUCTION CORPORATION,
2909Petitioner,
2910CASE NO. 89-6844BID
2913FLORIDA BOARD OF REGENTS,
2917Respondent,
2918and
2919ANGLIN CONSTRUCTION COMPANY,
2922Intervenor.
2923________________________________________/
2924FINAL ORDER
2926The Florida Board of Regents, having received the Recommended Order
2936(reproduced herein) entered in this case by Diane K. Kiesling, a duly designated
2949Hearing Officer of the Division of Administrative Hearings, dated February 26,
29601990, and having received no exceptions to the Recommended Order, hereby adopts
2972the findings of fact and conclusions of law contained in the Recommended Order.
2985RECOMMENDED ORDER
2987Pursuant to notice, a formal hearing was held in this case on January 18,
30011990, in Tallahassee, Florida, before the Division of Administrative Hearings,
3011by its designated Hearing Officer, Diane R. Kiesling.
3019APPEARANCES
3020For Petitioner: C. Gary Moodv
3025Attorney at Law
3028Post Office Drawer 2759
3032Gainesville, Florida 32602
3035For Respondent: Jane Mostoller
3039Assistant General Counsel
3042Gregg A. Gleason
3045General Counsel
3047Florida Board of Regents
3051325 West Gaines Street
3055Suite 1522
3057Tallahassee, Florida
305932399-1950
3060For Intervenor: Raymond M. Ivey
3065Attorney at Law
3068703 North Main Street
3072Suite A
3074Gainesville, Florida 32601
3077STATEMENT OF ISSUES
3080The issues are whether the Petitioner, D.E. Wallace Construction Corp., is
3091the lowest responsive bidder on project BR-116; whether the Respondent, the
3102Florida Board of Regents, correctly rejected the bid submitted by the
3113Petitioner; and whether the bid on BR-116 should be awarded to the Intervenor,
3126Anglin Construction Company.
3129PRELIMINARY STATEMENT
3131The Petitioner presented the testimony of Donald E. Wallace. The
3141Respondent presented the testimony of Larry Ellis, Patricia Jackson, and Murdock
3152Shaw. The Intervenor presented the testimony of Dennis Ramsey. Joint Exhibits
31631-9 were admitted in evidence.
3168The transcript of the proceedings was filed on February 9, 1990. All three
3181parties timely filed proposed findings of fact and conclusions of law. All
3193proposed findings of facts and conclusions have been considered. A specific
3204ruling on each proposed finding of fact is made in the Appendix attached hereto
3218and made a part of this Recommended Order.
3226FINDINGS OF FACT
32291. Respondent issued a Call for Bids, in Florida Administrative Weekly,
3240Volume 15, No. 38, September 22, 1989, for a construction project referred to as
3254the Reitz Union Addition, BR-116, University of Florida. The Call for Bids
3266provided that at least 15 percent of the project contract amount would be
3279expended with minority business enterprises certified by the Florida Department
3289of General Services as set forth under the Florida SSmall and Minority Business
3302Assistance Act, Chapter 287, Florida Statutes. If 15 percent were not
3313obtainable, the State Universiry System would recognize good faith efforts by
3324the bidder.
33262. The Call For Bids provided that all bidders must be qualified at the
3340time of their Bid Proposal in accordance with the Instruction to Bidders,
3352Article B-2. The Instructions to Bidders, Article B-2, provides in pertinent
3363part that in order to be eligible to submit a Bid Proposal, a bidder must meet
3379any special requirements set forth in the Special Conditions of the Project
3391Manual.
33923. The Project Manual Index provides that "L-Special Conditions" pages are
3403numbered separately.
34054. The Project Manual, Instruction to Bidders B-23, as revised by Section
3417L, Special Conditions, Supplement #1, at supplement page 2, provides that the
3429contract will be awarded by Respondent for projects of $500,000 or more, to the
3444lowest qualified bidder, provided it is in the best interest of the Respondent
3457to accept it. The award of the contract is subject to the provisions of Section
3472287.0945, Florida Statutes, and the demonstration of "good faith effort" by any
3484bidder whose Bid Proposal proposes less than 15 percent participation in the
3496contract by MBFs. Demonstrated "good faith effort" as set forth in the Special
3509Conditions would be accepted in lieu of all or part of the 15 percent
3523requirement. The contract award will be made to the bidder that submits the
3536lowest responsive aggregate bid within the preestablished construction budget.
3545The aggregate bid shall consist of the base bid plus accepted additive alternate
3558bids, or less accepted deductive alternate bids, applied in the numerical order
3570in which they are listed on the bid form.
35795. The Project Manual, Instructions to Bidders, B-25 at page 17, provides
3591that the Respondent/Owner has adopted a program for the involvement of minority
3603business enterprises in the construction program. The application of that
3613programis set forth in the Special Conditions of the Project Manual. The Project
3626Manual, Instructions to Bidders, B-26 at page 17, provides that bidders shall be
3639thoroughly familiar with the Special Conditions and shall strictly adhere to
3650their requirements.
36526. A representative from D.E. Wallace Construction Corp., Ms. Betsy
3662Wallace, attended the pre-solicitation/pre-bid meeting on October 5, 1989. One
3672of the purposes of the pre-solicitation/pre-bid meeting was to explain the MBE
3684program to the general contractors and others in attendance. Mr. Larry Ellis,
3696the minoritv purchasing coordinator for the University of Florida, provided the
3707contractors with information as to how they could obtain the 15 percent minority
3720participation requirement or how they could satisfy the requirements of the good
3732faith effort. Mr. Ellis informed those in attendance that the listing of
3744subcontractors form required that the bidder reveal the 15 percent MBE
3755participation on the face of the form, that such form was located in the Special
3770Conditions section, and that the form must be completed and submitted at the
3783time of bid opening, if in fact the general contractor was seeking to show he or
3799she had met the 15 percent participation requirement.
38077. Sealed bids for BR-116 were opened on October 19, 1989. Petitioner was
3820the lowest monetary bidder. Anglin Construction Company, Intervenor, was the
3830second lowest monetary bidder.
38348. Petitioner was notified by letter dated October 24, 1989, that its bid
3847proposal was found not to be in compliance with the requirements of the Project
3861Manual because an incorrect list of subcontractors form was submitted, that
3872Petitioner's proposed MBEs were not identified at the time of bid opening, and
3885that Petitioner failed to show a good faith effort in meeting the 15 percent MBE
3900participation.
39019. By letter dated October 30, 1989, the University of Florida recommended
3913to the Respondent that the construction contract for BR-116 be awarded to the
3926Intervenor for the base bid and alternates 1 through 9 in the amount of
3940$991,272.
394210. The Project Manual for BR-116 contains Section L, Special Conditions,
3953which contains Supplement #1, with pages numbered supplemental pages 1 through
396410. The Call for Bids provides that bids must be submitted in full and in
3979accordance with the requirements of the drawings and Project Manual. The
3990Project Manual provides that bidders are required to examine carefully the
4001drawings, specifications, and other bidding documents and to inform themselves
4011thoroughly regarding any and all conditions and requirements that may in-any
4022manner affect the work. Mr. D.E. Wallace testified that he is a certified
4035general contractor licensed by the State of Florida for 13 years and that as
4049part of his licensing examination he was required to demonstrate proficiency in
4061reading and understanding bidding documents, manuals, instructions, plans, and
4070drawings. Mr. Wallace testified that he skimmed over the Project Manual and the
4083Special Conditions section but that he really did not review them.
409411. Petitioner submitted its list of subcontractors on an outdated form,
4105dated January 20, 1988, contained in the Project Manual at Section D, page 21.
4119In Supplement #1 of Section L, Special Conditions, at page 17 of the Project
4133Manual, the bidder is instructed to delete the January 20, 1988, version of the
4147subcontractors form and substitute in lieu thereof the List of Subcontractors
4158form included in the Supplement dated June 15, 1988. The form was revised to
4172allow contractors who could not meet the MBE requirements to show good faith
4185effort in obtaining participation, to restrict MBEs to those certified by the
4197Florida Department of General Services, and to eliminate any bid shopping
4208attempts by requiring that contractors reveal their NBE participation at the
4219time of the bid opening.
422412. Petitioner admitted that the wrong list of subcontractors form was
4235used when its bid was submitted.
424113. The Respondent's Project Manual contains a licensed version of a
4252standard American Institute of Architects (AIA) document which could not be
4263revised without AIA permission. The revised list of subcontractors form and
4274revised MBE requirements were placed within the Special Conditions section of
4285the Project Manual, which did not require AIA's permission. It is not unusual,
4298in the construction industry, to have supplemental or special conditions within
4309a project manual.
431214. The construction budget for this project was $1,096,800.
432315. Petitioner did not submit its MBE subcontractors at the time of bid
4336opening. Petitioner submitted its MBE plan on October 26, 1989, seven days
4348after bid opening.
435116. Petitioner's MBE subcontractor participation was less than 15 percent
4361of the contract sum required for BR-116. The contract sum is comprised of the
4375base bid and the alternates for the project.
4383CONCLUSIONS OF LAW
4386The Division of Administrative Hearings has jurisdiction of the parties to
4397and subject matter of these proceedings. Section 120.53(5) and 120.57(1),
4407Florida Statutes.
4409Section 240.209(3)(n), Florida Statutes, provides in pertinent part, that
4418the Board of Regents shall adopt rules to administer a program for the
4431maintenance and construction of facilities in the State University System.
4441The Florida Board of Regents promulgated Rule 6C-14.021(2), Florida
4450Administrative Code, which provides in pertinent part:
4457(2) In order to be eligible to submit a bid proposal,
4468a firm must, at the time of receipt of bids:
4478* * *
4481(d) Meet any special prequalification requirements set
4488forth in the project specifications, including
4494compliance with requirements for minority business
4500enterprise participation.
4502* * *
4505(5) All projects will be publicly bid in accordance
4514with the provisions in the project specifications.
4521Except for informalities which may be waived by the
4530Chancellor or designee, or by the University-president
4537or designee for Minor Projects, a bid which is
4546incomplete or not in conformance with the requirements
4554of the specifications shall be determined to be non-
4563responsive and shall be rejected. Award of contract
4571will be made to the firm determined to be qualified in
4582accordance with these rules which submits the lowest
4590and best priced proposal for the work except that if it
4601is in the best interest of the State, all bids may be
4613rejected and the project may be bid again.
4621The burden of proof to establish that it is entitled to the award of the
4636contract is upon the unsuccessful party. Florida Department of Transportation v.
4647J.W.C. Co., Inc. 396 So.2d 778 (Fla. 1st DCA 1981). The challenging party has
4661the burden to establish that the agency's award resulted from illegality, fraud,
4673oppression, or misconduct and was not the result of a fair, full, and honest
4687exercise of the agency's discretion. Liberty County v. Baxter's Asphalt and
4698Concrete, Inc., 121 so.2d 505 (Fla. 1982); Bay Plaza I v. Dept. of Health and
4713Rehabilitative Services, 11 FALR 2854 (April 11, 1989)
4721An agency has broad discretion in soliciting and accepting bids, and a
4733decision based on the honest exercise of its discretion may not be overturned by
4747a court even if reasonable people may disagree with the outcome. C.H Barco
4760Contracting Co. v. Deoartment of Transportation, 483 So.2d 796 (Fla. 1st DCA
47721986); Liberty County v. Baxter's Asphalt and Concrete, Inc., 421 So.2d 505
4784(Fla.1982).
4785The APA provides the procedural mechanism for challenging an agency's
4795decision to award or reject bids. [T]he scope of the inquiry is limited to
4809whether the purpose of competitive bidding has been subverted. In short, the
4821hearing officer's sole responsibility is to ascertain whether the agency acted
4832fraudulently, arbitrarily, illegally, or dishonestly." Department of
4839Transportation v. Groves-Watkins, 530 so.2d 912, 914 (Fla. 1988)
4848It is well established that the responsiveness of a bid is determined as of
4862the time the bids are made public. Palm Beach Group, Inc. v. Department of
4876Insurance and Treasurer, 10 FALR 5627, 5634 (Fla. Dept. of Insurance,1988);
4888Harry Pepper & Associates v Cit of Caoe Coral, 352 So.d 1190 (Fla. 2nd DCA
49031977).
4904The Board of Regents, in the good faith exercise of its discretion,
4916determined that Petitioner's bid was not responsive as submitted. Petitioner
4926failed to use the correct list of subcontractors form and failed to reflect its
4940MBE subcontractor participation requirements at the time of bid opening as
4951required by the Instructions to Bidders. Instead, Petitioner submitted its
4961proposed MBE participation plan seven days after the date of bid opening, in
4974contravention of the Instructions to Bidders and the Special Conditions of the
4986Project Manual. In E.M. Watkins & Company, Inc. v. Board of Regents, 414 So.2d
5000583 (Fla. 1st DCA 1982) the Court held that a bidder could not submit
5014subcontractor information after 48 hours of the bid opening. The Court further
5026declared that substituting subcontractors (bid shopping) should be discouraged
5035by requiring a list of subcontractors prior to the bid opening. Id at p. 587.
5050The policy reason behind requiring a list of subcontractors is to prevent the
5063unfair bidding advantage one contractor derives from his failure to list
5074required subcontractors. Requiring the list of subcontractors at the bid
5084opening prevents competitive advantage, insures the quality of the
5093subcontractors, insures public confidence in thebidding process, and encourages
5102future competition. ID at p. 587.
5108A bid which contains a material variance is unacceptableooabest Foods,
5118Inc. v. Debt. of General Services, 493 So.2d 50 (Fla. 1st DCA 1986).
5131It is within the discretion of the Board of Regents whether or not to
5145reserve the right to grant a waiver of bid irregularities. Liberty City v.
5158Baxter's Asphalt and Concrete, Inc., supra. Even when an agency reserves the
5170right to waive bid irregularities, it is within the agency's discretion to
5182determine whether or not a waiver is appropriate. Id.
5191Failure to identify MBE subcontractor participation as required by the
5201Board of Regents bidding documents is a material defect of the bid and should
5215not be waived. See E.M. Watkins and Company v.Board of Regents, supra. An
5228agency may not waive a material irregularity in a bid. Robinson Electrical Co.,
5241Inc. v. Dade County, 417 So.2d 1032 (Fla. 3rd DCA 1982); Harry Pepper &
5255Associates v. City of Cape Coral, supra.
5262The application of the above criteria establishes that the failure of the
5274Petitioner to submit the proper list of subcontractors form identifying its
5285proposed MBEs on the face of the form at the time of bid opening and the failure
5302to demonstrate good faith efforts in meeting the MBE requirements is a material
5315irregularity. The Board of Regents may not waive the deficiency.
5325Petitioner argues that the forms provided in the Call For Bids are
5337contradictory. The facts do not support this contention. Both the Call For
5349Bids and the instructions given at the pre-bid meeting were clear. While
5361Petitioner characterizes its mistake as technical and argues that it amounts to
5373an elevation of form over substance, the facts and the law make it clear that
5388Petitioner's failure was material and its bid gas unresponsive. The bid of
5400Petitioner was correctly rejected.
5404RECOMMENDATION
5405Based upon the foregoing Findings of Fact and Conclusions of Law, it is
5418RECOMMENDED that the Florida Board of Regents enter a Final Order rejecting
5430D.E. Wallace Construction Corporation's bid for project BR-1167 denying the
5440protest, and awarding ne contract for project BR-116 to Anglin Construction
5451Company.
5452DONE and ENTERED this 26th day of Feburary, 1990, In Tallahassee, Florida.
5464_________________________
5465DIANE K. KIESLING
5468Hearing Officer
5470Division of Administrative Hearings
5474The DeSoto Building
54771230 Apalachee Parkway
5480Tallahassee, FL 32399-1950
5483(904) 488-9675
5485Filed with Clerk of the Divsion of
5492Administrative Hearings this 26th
5496day of February, 1990.
5500COPIES FURNISHED:
5502C. Gary Moody
5505Attorney at Law
5508Post Office Drawer 2759
5512Gainesville, Florida 32602
5515Jane Mostoller
5517Assistant General Counsel
5520Gregg A. Gleason
5523General Counsel
5525Florida Board of Regents
5529325 West Gaines Street, Suite 1522
5535Tallahassee, Florida 32399-1950
5538Raymond M. Ivey
5541Attorney at Law 703 North Main Street, Suite A.
5550Gainesville, Florida 32601
5553Chancellor Charles B. Reed
5557State University System of Florida
5562107 West Gaines Street
5566Tallahassee, Florida 32399-1950
5569APPENDIX TO THE RECOMMENDED ORDER
5574IN CASE NO. 89-6844BID
5578The following constitutes my specific rulings pursuant to Section
5587120.59(2), Florida Statutes, on the proposed findings of fact submitted by the
5599parties in this case.
5603Specific Rulings on Proposed Findings of Fact
5610Submitted by Petitioner, D.E. Wallace Construction Corp.
56171. Each of the following proposed findings of fact is adopted
5628in substance as modified in the Recommended Order. The
5637number in parentheses is the Finding of Fact which so adopts
5648the proposed finding of fact: 6(7).
56542. Proposed findings of fact 1, 3-5, 7, and 8 are subordinate
5666to the facts actually found in this Recommended Order.
56753. Proposed findings of fact 2 and 9 are unsupported by the
5687competent substantial evidence.
5690Specific Rulings on Proposed Findings of Fact
5697Submitted by Respondent, Florida Board of Regents
57041. Each of the following proposed findings of fact is adopted
5715in substance as modified in the Recommended Order. The
5724number in parentheses is the Finding of Fact which so adopts
5735the proposed finding of fact: 1-16(1-16).
5741Specific Rulings on Proposed Findings of Fact
5748Submitted by Intervenor, Anglin Construction Company
57541. Each of the following proposed findings of fact is adopted
5765in substance as modified in the Recommended Order. The
5774number in parentheses is the Finding of Fact which so adopts
5785the proposed finding of fact: 2(6); 5(8); and 6(16).
57942. Proposed findings of fact 1, 3, and 4 are subordinate to the
5807facts actually found in this Recommended Order.
5814This FINAL ORDER constitutes final agency action and an order under Chapter
5826120 of the Florida Statutes. petitioner and Intervenor may obtain judicial
5837review of this Final Order In the District Court of Appeal, in accordance with
5851Section 120.68, F.S., and the Florida Rules of Appellate Procedure. Commencement
5862of an appeal may be made by filing a Notice of Appeal with the Office of the
5879Corporate Secretary of the Board of Regents and a copy of that Notice, together
5893with the filing fee prescribed by law, with the Clerk of the Court, within 30
5908days after this order is dated as being filed in the Office of the Corporate
5923Secretary.
5924THIS FINAL ORDER entered this 30th day of March, 1990.
5934BY: _________________________
5936Charles B. Reed
5939Chancellor
5940State University System of Florida
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