92-002272BID Centex-Rooney Construction Company Inc. vs. Board Of Regents
 Status: Closed
Recommended Order on Friday, May 29, 1992.


View Dockets  
Summary: Low bidder failed to prove good faith effort when it did the required things in the wrong order.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8CENTEX-ROONEY CONSTRUCTION COMPANY, )

12)

13Petitioner, )

15)

16vs. ) CASE NO. 92-2272BID

21)

22FLORIDA BOARD OF REGENTS, )

27)

28Respondent, )

30and )

32)

33STATE PAVING CORPORATION, )

37)

38Intervenor. )

40______________________________________)

41RECOMMENDED ORDER

43This case was heard pursuant to Notice by Stephen F. Dean designated Hearing

56Officer of the Division of Administrative Hearings on April 27, 1992, in

68Tallahassee, Florida.

70APPEARANCES

71For Petitioner: James E. Glass, Esquire

776161 Blue Lagoon Dr., Suite 350

83Miami, FL 33126

86For Respondent: Jane Mostoller, Esquire

91325 W. Gaines St., Suite 1522

97Tallahassee, FL 32399-1950

100For Intervenor: J. Victor Barrios, Esquire

1061026 Ease Park Avenue

110Tallahassee, FL 32301

113PRELIMINARY STATEMENT

115This proceeding was initiated by the filing of a formal bid protest dated

128March 19, 1992, by the Petitioner. The Petitioner alleged that it properly

140demonstrated all good faith effort requirements set forth in the project manual

152for BR-658 and that its bid was wrongfully rejected by Respondent. Petitioner

164timely requested a formal administrative hearing, pursuant to Section 120.57,

174Florida Statutes. A Petition to Intervene, filed by State Paving Corporation

185was granted. Pursuant to a prehearing order, dated April 10, 1992, the

197Petitioner and Respondent entered into a prehearing stipulation filed on April

20824, 1992, as to the nature of the controversy, statement of position, exhibit

221list, witnesses, factual admissions, issues of fact and law to be determined,

233and an estimate of hearing time. The Intervenor filed a response to the

246prehearing stipulation on April 24, 1992. Pursuant to notice, this cause came

258to be heard on April 27, 1992, in Tallahassee, Florida, before Stephen F. Dean,

272a duly designated hearing officer of the Division of Administrative Hearings.

283Petitioner called Mr. David Hamlin, Estimator with Centex-Rooney, as a witness.

294Respondent called Mr. Charles Federico, Director of Facilities Planning, Florida

304Atlantic University, and Ms. Patricia Jackson, MBE Coordinator for Capital

314Programs, Florida Board of Regents. References to the stipulated joint exhibits

325are shown by the abbreviation "Jt. Ex." followed by the number of the exhibit

339cited. References to the transcript of the hearing are shown by the

351abbreviation "R" followed by the page number cited. The parties submitted

362proposed findings in the form of proposed recommended orders which were read and

375considered. Appendix A states which of the proposed findings were adopted, and

387which were rejected and why.

392STATEMENT OF THE ISSUE

396Whether the Respondent properly rejected the Petitioner's bid for Board of

407Regents (BOR) project 658 because it did not comply with the good faith effort

421requirements of the General and Special Conditions of the project's

431specifications?

432FINDINGS OF FACT

4351. Call for Bids was issued by the Respondent, Florida Board of Regents,

448for Board of Regents ("BOR") project numbered 658, Southeast Campus Building -

462Davie at Broward Community College Central Campus, in Florida Administrative

472Weekly. (Stipulated).

4742. The Project Manual is the volume assembled which includes the bidding

486requirements, sample forms, and Conditions of the Contract and Specifications

496(Jt. Ex. 1 at pp. 8 of 106 pages).

5053. The Call for Bids (Jt. Ex. 2) provided that at least fifteen (15)

519percent of the project contracted amount will be expended with minority business

531enterprises (MBE) certified by the Department of General Services as set forth

543under the Florida Small and Minority Business Act, Chapter 287, Florida

554Statutes. If fifteen percent were not obtainable, the State University System

565would recognize good faith efforts by the bidder (Jt. Ex. 2).

5764. The Call for Bids (Jt. Ex. 2) provided that the bidder be advised to

591review the Good Faith Efforts requirements in the Special Conditions section of

603the Project Manual immediately, in order to schedule the necessary tasks to

615accomplish Good Faith Efforts.

6195. The Call for Bids (Jt. Ex. 2) provided that all bidders must be

633qualified at the time of their bid proposal in accordance with the Instruction

646to Bidders, Article B-2. The Instructions to Bidders, Article B-2 at page 9 of

660the Project Manual, (Jt. Ex. 1) provides in pertinent part, that in order to be

675eligible to submit a Bid Proposal, a bidder must meet any special requirements

688set forth in the Special Conditions section of the Project Manual.

6996. The Project Manual, Instructions to Bidders, B-23 at page 16 (Jt. Ex.

7121) provides that the contract will be awarded by the Respondent for projects of

726$500,000 or more, to the lowest qualified and responsible bidder, provided the

739bid is reasonable and it is in the best interest of the Respondent to accept it.

755The award of the contract is subject to the demonstration of "good faith effort"

769by any bidder whose Bid Proposal proposes less than fifteen (15) percent

781participation in the contract by MBEs (Minority Business Enterprise).

790Demonstrated "good faith effort" is set forth in the Special Conditions. The

802contract award will be made to that responsible bidder submitting the low

814responsive aggregate bid within the preestablished construction budget.

8227. The Project Manual, Instructions to Bidders, B-25 at page 17, (Jt. Ex.

8351) provides that the Florida Small and Minority Business Act, Chapter 287,

847Florida Statutes requires the involvement of minority business enterprises in

857the construction program. The Respondent/Owner has adopted a program for the

868involvement of minority business enterprises in the construction program. The

878application of that program is set forth in the Special Conditions of the

891Project Manual.

8938. The Project Manual, Instructions to Bidders, B-26 at page 17 (Jt. Ex.

9061) provides that bidders shall be thoroughly familiar with the Special

917Conditions and their requirements.

9219. The Project Manual, Instructions to Bidders, B-26, at page 15 provides

933that falsification of any entry made on a bidder's proposal will be deemed a

947material irregularity and will be grounds for rejection.

95510. The Project Manual, Special Conditions, Article 1, subparagraph 1.1.1,

965at page I-1 of I-26 pages, (Jt. Ex. 1), provides that the SUS has established a

981Construction Minority Business Enterprise Program in compliance with the Florida

991Small and Minority Business Assistance Act, Chapter 287, Florida Statutes. The

1002expenditure of at least fifteen (15) percent of the Base Bid with certified MBEs

1016is a requirement of this contract, unless Good Faith Effort, as identified in

1029paragraph 1.7 can be demonstrated by the Bidder. MBEs not certified by

1041Department of General Services will be deleted from the calculation of the

1053required participation of MBEs, and evidence of Good Faith Effort in lieu

1065thereof will be required as identified in subparagraph 1.1.2 and paragraph 1-7

1077of these Special Conditions.

108111. The Project Manual Special Conditions, Article I, subparagraph 1.1.2

1091at page I-2 of I-26 pages, (Jt. Ex. 1), provides that evidence of good faith

1106efforts will be required as specified by the Respondent/Owner within two working

1118days after the opening of bids. Incomplete evidence which does not fully

1130support each of the eight requirements of paragraph 1.7 of the Special

1142Conditions shall constitute cause for determining the bid to be unresponsive,

1153except that the owner may, at its option but not as a duty, seek supplementary

1168evidence not submitted by the Bidder.

117412. The Project Manual Special Conditions, Article 1, paragraph 1.6 at

1185page I-3 of I-26 pages, (Jt. Ex. 1) states that MBE's participating in the State

1200University System Minority Construction Program must be certified as a MBE by

1212the Florida Department of General Services (hereinafter referred to as DGS) at

1224the time of bid submittal. Certification identifies and limits the Specialty

1235Area of business the MBE can perform and still qualify as a certified MBE.

1249Therefore, the trade service listed on the Proposal for each of the MBEs must be

1264within the scope of the Specialty Area. a t r e c s a o t d e r i u q e r s i r e d d i b e h T  i n

1302that a listed MBE is certified by the DGS in the appropriate specialty area to

1317perform the services for which it is listed. (Jt. Ex. 1, B-15, at p. 13).

133213. On January 17, 1992, Petitioner, Centex-Rooney Consturction Company,

1341Intervenor, State Paving Corporation, and ten other bidders submitted bids on

1352BOR Construction Project No. BR-658.

135714. After review of the bids and preparation of the bid tabulatio it was

1371announced by FAU that Centex-Rooney was the apparent low bidder, but that

1383Centex-Rooney had failed to meet the fifteen percent (15%) MBE participation

1394requirement, and therefore, would be required to submit evidence of Good Faith

1406Efforts within two days.

141015. The bid submitted by Centex-Rooney listed four (4) subcontractors

1420which Centex-Rooney represented as DGS certified MBE firms, for a total of

1432$867,000 which was 9.56% of the base bid of $9,067,000. (Stipulated).

144616. Since the bid submitted by Centex-Rooney was less than fifteen (15)

1458percent required participation in the contract by MBEs, the University Planning

1469Office requested that Centex-Rooney submit documentation to demonstrate "good

1478faith effort" as set forth in the Special Conditions of the Project Manual.

1491(Stipulated).

149217. Centex-Rooney timely submitted its good faith documentation on January

150222, 1992. (Stipulated).

150518. The Board of Regents with representatives of Centex-Rooney on February

151625, 1992 to give Petitioner an opportunity to clarity and submit any additional

1529good faith evidence in support of its bid. After reviewing the additional

1541evidence, the Respondent contended that Centex-Rooney was in non-compliance with

1551paragraphs 1.1.1 and 1.6.1 of the Special Conditions of the Project Manual,

1563requiring at least 15% participation by MBEs at the time of bid opening, and at

1578least one good faith effort criteria, paragraph 1.7.4, Special Conditions of the

1590Project Manual. (Stipulated).

159319. Centex-Rooney was informed of the Board of Regents decision to reject

1605its bid for non-compliance with Respondent's MBE requirements, and on March 6,

16171992, the Chancellor of the Florida Board of Regents awarded the contract to

1630State Paving Corporation. (Stipulated).

1634^ The Board notified by letter dated March 6, 1992, all bidders of its award of

1650contract for BR-658 project to the next lowest responsive bidder, State Paving

1662Corporation. (Stipulated).

166420. Petitioner timely filed a Notice of Intent to Protest on March 10,

16771992. (Stipulated).

167921. On March 19, 1992, Petitioner timely filed its Petition for Formal

1691Written Protest for BR-658. (Stipulated).

169622. A representative from Centex-Rooney attended the pre-bid/pre-

1704solicitation meeting. (Jt. Ex. 10, R-115, 116). The minority business

1714enterprise program was discussed and the Board of Regents' requirements for good

1726faith efforts were reviewed. (R-116, 117, 131).

173323. Centex-Rooney submitted its bid proposal on January 17, 1992. (Jt.

1744Ex. 13). On page 2, paragraph c., of the bid proposed form submitted by Centex-

1759Rooney, it provides that expenditure with minority business enterprises shall be

1770consistent with the requirements of Article 1. of the Special Conditions,

1781Minority Business Enterprise Requirements.

178524. Centex-Rooney listed four subcontractors on its List of Subcontractors

1795and MBE participation form as DGS certified MBEs for a total of 9.56%

1808participation (Jt. Ex. 13, Jt. Ex. 31). The List of Subcontractors form is an

1822integral part of the proposal (Jt. Ex. 13, List of Subcontractors Form page 1)

1836and it is required of all bidders that MBEs must be certified at the time of bid

1853opening for bona fide participation. (Jt. Ex. 1, page I-3 of I-26 pages, R-163,

1867174).

186825. Two of the four subcontractors listed by Centex-Rooney, Quality

1878Concrete and S&S Roofing, were not DGS certified MBEs at the time of bid

1892submittal. (R-19, 150, 163, 164, 174). Therefore, the two non-DGS certified

1903subcontractors were deleted from the calculation of the required participation

1913of MBEs, so that the total DGS certified MBE participation of Centex-Rooney at

1926the time of bid submittal was 5%. (Jt. Ex. 1, Spec. Conditions 1.1.1, page I-1,

1941Jt. Ex. 13, R-19, 150, 163-4, 174). Therefore, Centex-Rooney was required to

1953show a good faith effort to engage MBE's. See Paragraph 16 above.

196526. Ms. Patricia Jackson, MBE Coordinator for Respondent, testified that

1975requiring the DGS certified MBEs to be named at the time of bid opening makes

1990the contract bidding procedures consistent, and eliminates any unfair price

2000differentials between contractors. (R-151).

200427. Centex-Rooney was pressed for time in responding to the bid. It

2016called a large number of the MBEs listed the documentation provided, and wrote

2029letters to those subcontractors who expressed an interest and to other

2040subcontractors.

204128. Mr. Charles Federico was chairman of the MBE advisory committee at

2053Florida Atlantic University (Jt. Ex. 6, R-115). The committee reviewed the good

2065faith efforts submitted by Petitioner (Jt. Ex. 6, 25, R-115, 140).

207629. The good faith effort submittal to FAU from Centex-Rooney contained

2087nine sections (Jt. Ex. 25) with the following consecutive headings: Pre-Bid

2098Meeting Attendance, Advertisements for MBE Participation, Solicitation Letter to

2107Minority Businesses, Follow-Up Contacts to Minority Businesses, Selected Items

2116(or portions) of Work for Minority Businesses, Specific Project Bidding

2126Information made available to Minority Businesses, Utilization of Minority

2135Businesses in Bid, Solicitation of Available Minority Organizations to Recruit

2145Minority Businesses, and a Table of Contents.

215230. Under the third heading in Centex-Rooney's good faith efforts,

2162Solicitation Letters to Minority Businesses, Petitioner provided 55 form letters

2172in his submittal to FAU and a bulletin. The text of each form letter provided

2187the following:

2189Centex-Rooney is bidding as general

2194contractor on the Southeast Campus Building

2200for FAU and BCC, Central Campus, Davie, FL

2208and invites your firm to submit a quotation

2216for the materials and/or labor on any portion

2224of said project which falls within your scope

2232of work. Please review the attached notices

2239with respect to pertinent information

2244pertaining to the bid. If your firm will be

2253unable to submit a bid on the project, please

2262state your reasons on the enclosed

2268unavailability certificate form, sign and

2273return to the Office of C-R. By doing this,

2282it will help maintain an active MBE directory

2290at Centex-Rooney and continue to indulge you

2297on our bid list. Centex-Rooney encourages

2303that participation of MBE contractors will be

2310more than happy to answer your questions

2317regarding this project.

232032. Under the section heading, Follow-up Contracts to Minority Businesses,

2330for Petitioner's good faith submittal to FAU Petitioner included a 14 page log

2343gridded with subcontractor/ vendor names, telephone numbers, MBE designation,

2352will bid, bid submitted, low bid, date contacted and remark sections.

236333. The FAU MBE advisory committee found Petitioner in non-compliance with

23741.7.3, 1.7.4, 1.7.7 and 1.7.8 of the Special Conditions section of the Project

2387Manual that contains the good faith efforts requirements of Respondent. (Jt.

2398Ex. 6, Jt. Ex. 12). The committee based its findings on the Special Conditions

2412section of the Project Manual. (R-119).

241834. The committee found non-compliance with 1.7.3 because the 55 form

2429letters submitted by Petitioner were dated January 9, 1992. The committee

2440determined that a letter dated January 9 was too late to give MBEs time to

2455respond to the January 17 bid opening date. (R.121).

246435. In regard to 1.7.4, the committee found the Petitioner in non-

2476compliance because no follow-up letters, telegrams, or meetings notes were

2486provided in the good faith documentation. (R-122, 124).

249436. Mr. Federico testified that the committee found non-compliance with

25041.7.7 of the Good Faith Effort requirements (R-125, 126) and 1.7.8. (R-126,

2516127).

251737. The advisory committee determination was sent to the Vice-President of

2528Administration and Finance at FAU, Ms. Marie McDemmond. (R-128).

253738. The University President recommended award of the contract to Centex-

2548Rooney. (Jt. Ex. 2, R-129). The University President is not authorized to

2560award Board of Regents contracts. The Board of Regents awards contracts for

2572projects of $500,000 or more. (Jt. Ex. 1, B-23, at page 16).

258539. Centex-Rooney could not utilize the two additional subcontractors,

2594Kings Plumbing and Eagle Electric Distributors, because they were not listed on

2606the Subcontractor/MBE form submitted by Centex-Rooney at the time of bid

2617opening. (R-129, 130, 131). The University reconsidered its recommendation

2626(Jt. Ex. 29), and subsequently recommended State Paving for award. (Jt. Ex.

263832).

263940. The Handbook distributed by FAU at the pre-bid/pre-solicitation

2648meeting contains a disclaimer which states that it is not intended to replace or

2662supplement any information in the Project Manual or conditions for contract

2673award (R-31, 132).

267641. State Paving met and exceeded the 15% MBE participation requirements

2687for BR-65 (Jt. Ex. 14, R-20). Centex-Rooney's bid plus three alternatives was

2699$9,590,000, and State Paving's bid plus three alternates was 9,592,500, so that

2715the two bidders were $2,500 apart. (Jt. Ex. 7).

272542. At least seven of the twelve bidders on BR-658 met the 15% MBE

2739participation goal (R-19).

274243. The FAU committee has reviewed many bids and has had several that met

2756good faith efforts and several where the low bidders had met 15% MBE goal. (R-

2771117, 142).

277344. Ms. Jackson received a telephone call from Centex-Rooney regarding the

2784FAU advisory committee's determination of non-compliance. (R-149). Ms. Jackson

2793contacted Mr. Federico and reviewed the bid proposal and good faith efforts of

2806Centex-Rooney on behalf of the Board of Regents. (R-148, 149).

281645. Ms. Jackson reviewed Centex-Rooney's good faith efforts as submitted

2826to FAU and found non-compliance with 1.7.4 of the Special Conditions in the

2839Project Manual for BR-658. (R-149).

284446. The Special Conditions of the Project Manual at page I-5 for 1.7.4,

2857provide that the State University System requires that a bidder shall make no

2870less than one written follow-up contact per initial contact. In the event a

2883positive response is obtained, the Bidder shall request, in writing, a meeting

2895between the MBE and Bidder's staff.

290147. The documentation required in the Special Conditions for 1.7.4 are

2912copies of letters, telegrams and/or meeting rates. Ms. Jackson testified that

2923the telephone log submitted by Centex-Rooney to document compliance with 1.7.4

2934did not meet the Special Conditions requirements because it was not a letter nor

2948a telegram or a meeting note. (R-149). Nor did the telephone log reflect one

2962written follow-up per initial contact as required by the University

2972implementation of 1.7.4 in the Special Conditions (R-149, 157).

298148. Ms. Jackson contacted Centex-Rooney by phone and informed it of her

2993finding that Centex-Rooney's reversal of the telephone calls and letters did not

3005conform to the requirements of 1.7.4. (R-152). Thereafter, a meeting was

3016arranged between Ms. Jackson and other BOR staff to provide Centex-Rooney an

3028opportunity to provide supplemental evidence of good faith effort. (R-152).

303849. The Special Conditions section, at I-2, paragraph 1.1.2 provides that

3049incomplete evidence which does not fully support each of the eight requirements

3061of Paragraph 1.7 (good faith requirements) shall constitute cause for

3071determining the bid to be unresponsive, except that the Owner may, at its option

3085but not as a duty, seek supplementary evidence not submitted by the bidder. (R-

3099152).

310050. Centex-Rooney supplemented its submittal with 55 form letters dated

3110January 24, 1992. These form letters were not considered satisfactory by

3121Respondent as a written follow-up to each initial contact or to meet any other

3135requirements in 1.7.4 because the letters were dated after the date of the bid

3149opening. (Jt. Ex. 27, R-157, 158).

315551. Pursuant to Centex-Rooney's request at the February 25, 1992 meeting,

3166Ms. Jackson again reviewed the company's documentation of its good faith

3177efforts, evaluating the January 9, 1992 letters originally submitted as

3187documentation for 1.7.4, as documentation for 1.7.3, and evaluating the

3197telephone log, originally submitted as documentation of follow-up contact for

32071.7.4 as initial solicitation documentation for 1.7.3. (R-153, 154).

321652. Considering Centex-Rooney's efforts in their best light, it was still

3227determined by BOR that Centex-Rooney was not in compliance with 1.7.4. because

3239there was no initial written contact and no written follow-up for each positive

3252response. The telephone log is deemed to be analogous to meeting notes;

3264however, the documentation viewed most favorably for Petitioner does not meet

3275the written requirements of the Special Conditions which cannot be waived. (R-

3287157, 160, 161, 162, 163, 171).

329353. Two spread sheets were provided to BOR as supplemental documentation

3304(Jt. Ex. 26). The Summary (Jt. Ex. 37) and other spread sheets (Jt. Ex. 36)

3319were not provided to FAU by Centex-Rooney nor to Respondent in its subsequent

3332review or as part of its option to permit supplementary documentation for good

3345faith compliance. (R-55, 70, 71).

335054. Petitioner did not obtain the 15% MBE participation for BR 658.

3362Petitioner did not meet the MBE requirements contained in 1.1.1 of the Special

3375Conditions. (Jt. Ex. 1, page I-1).

338155. Two of the MBEs listed by Petitioner with its bid proposal were not

3395certified by DGS at the time of bid submittal. Petitioner did not meet the MBE

3410requirements contained in 1.6.1. (Jt. Ex. 2, I-3).

341857. The telephone log submitted by Petitioner was insufficient as required

3429documentation. Petitioner did not meet the good faith efforts requirement set

3440out in 1.7.4 of the Special Conditions (Jt. Ex. 2, page I-4). (R-175, Jt. Ex.

345528, 29).

345758. The telephone log, as presented by Centex-Rooney was not a copy of a

3471letter, a telegram or a meeting note. The telephone contact did not constitute

3484a written follow-up contact per initial contact as required by the Special

3496Conditions, nor did it suffice as a request in writing for a meeting between the

3511MBE and bidder's staff if a positive response was obtained from an MBE. (R-149,

3525157).

352659. Conversely, as proposed by Petitioner, the telephone contact was not

3537acceptable under the terms of the Special Conditions as an initial notice under

35501.7.3 because the contact was not by letter as required. Also, there was not a

3565letter for each initial telephone contact, and the January 9 letters did not

3578request meetings with those MBEs who responded positively, nor did the letters

3590provide evidence of any meeting notes. (R-157, 160, 161, 162, 163, 171).

3602CONCLUSIONS OF LAW

360560. The Division of Administrative Hearings has jurisdiction over the

3615parties and the subject matter presented herein, pursuant to Section 120.57(1),

3626Florida Statutes.

362861. Section 240.209(3)(p), Florida Statutes, provides in pertinent part,

3637that the Board of Regents shall adopt rules to administer a program for the

3651maintenance and construction of facilities in the State University System.

366162. The Florida Board of Regents promulgated Rule 6C-14.021(5), Florida

3671Administrative Code, which provides:

3675(5) d i b y l c i l b u p e b l l i w s t c e j o r p l l A  i n

3707accordance with the provisions in the project

3714specifications. Except for informalities

3718which may be waived by the Chancellor or

3726designee, or by the university president or

3733designee for Minor Projects, a bid which is

3741incomplete or not in conformance with the

3748requirements of the specifications shall be

3754determined to be non-responsive and shall be

3761rejected. Award of contract will be made to

3769the firm determined to be responsible and

3776qualified in accordance with these rules

3782which submits the lowest priced proposal for

3789the work except that it is in the best

3798interest of the State, any bids may be

3806rejected, or all bids may be rejected and

3814the project may be bid again. (e.s.)

382163. Additionally, the Florida Board of Regents promulgated Rule 6C-

383114.025(1), (2), (3), and (4), Florida Administrative Code, which provides:

3841(1) n a l p a p o l e v e d l l a h s  T h e C h t a c e l l o r n o

3875implement the Florida Small and Minority

3881Business Assistance Act of 1985. Each

3887university president shall be responsible for

3893implementation of the Plan.

3897(2) u l l a h s m e t s y S y t i s r  T h e S t s a e U n i v e t e

3931only the Department of General Services list

3938of certified minority business enterprises in

3944the construction program.

3947(3) Factors which shall be considered in

3954determining whether a contractor has made

"3960good faith efforts" to use the services or

3968commodities of a minority business enterprise

3974are set forth in Paragraph 287.0945(3)(b),

3980F.S.

3981(4) s e l y r e p r e s e n t s a l a f o  A n y i n d n i i d u a l w h v y

4019entity as a Minority Business Enterprise or

4026who does not fulfill the contractual

4032obligations is subject to be penalized as

4039provided in Section 287.094, F.S. . . .

404764. Section 287.0945(1) and (3)(b), Florida Statutes, provide in pertinent

4057part:

4058(1) e r e h t t a h t s d n i f e r u t a l s i g e L e h T  i s

4090evidence of a systematic pattern of past

4097and continuing racial discrimination against

4102minority business enterprises and a disparity

4108in the availability and use of minority

4115business enterprises in the state procurement

4121system. It is determined to be a compelling

4129state interest to rectify such discrimination

4135and disparity. Based upon statistical data

4141profiling this discrimination, the

4145Legislature has enacted race-conscious and

4150gender-conscious remedial programs to ensure

4155minority participation in the economic life

4161of the state, in state contracts for the

4169purchase of commodities and services, and in

4176construction contracts. The purpose and

4181intent of this section is to increase

4188participation by minority business

4192enterprises in the state procurement system.

4198This purpose will be accomplished by

4204encouraging the use of minority business

4210enterprises and the entry of new and

4217diversified minority business enterprises into

4222the marketplace.

4224(3)(b) . . . Factors which shall be

4232considered by the Minority Business

4237Enterprise Assistance Office in determining

4242whether a contractor has made good faith

4249efforts shall include, but not be limited to:

4257(e.s.)

42581. a d e d n e t t a r o t c a n r n o c e h t r e h t e h W  t y

4291presolicitation or prebid meetings that were

4297scheduled by the agency to inform minority

4304business enterprises of contracting and

4309subcontracting opportunities;

43112. d e s i t r e v d a r o t c a r t  W h e t h i e t h e c o n r n

4345general circulation, trade association,

4349and/or minority-focus media concerning the

4354subcontracting opportunities; (e.s.)

43573. Whether the contractor provided written

4363notice to a reasonable number of specific

4370minority business enterprises that their

4375interest in the contract was being solicited

4382in sufficient time to allow the minority

4389business enterprises to participate

4393effectively;

43944. d e w o l l o f r o t c a r t n o c e h t r e h t e h W  u p

4426initial solicitations of interest by

4431contacting minority business enterprises or

4436minority persons to determine with certainty

4442whether the minority business enterprises or

4448minority persons were interested;

44525. r s e l e c t e d p o r t i o o t c a  W h e t h e n r h e c o n t r t s

4490of the work to be performed by minority

4498business enterprises in order to increase the

4505likelihood of meeting the minority business

4511enterprise procurement goals, including,

4515where appropriate, breaking down contracts

4520into economically feasible units to

4525facilitate minority business enterprise

4529participation;

45306. p r o v i d e r d n t e r e s t i o t c  W h e t h e r t h e c o n t r a e d

4570minority business enterprises or minority

4575persons with adequate information about the

4581plans, specifications, and requirements of

4586the contract or the availability of jobs;

45937. r n e g o t i a t e d i n g o o t c a  W h e t h e o r h e c o n t r t d

4631faith with interested minority business

4636enterprises or minority persons, not rejecting

4642minority business enterprises or minority

4647persons as unqualified without sound reasons

4653based on a thorough investigation of their

4660capabilities; and

46628. o r e f f e c t i v e l y u s t e c r  W h e t h e r t h e c o n t a d

4699the services of available minority community

4705organizations; minority contractors' groups;

4709local, state, and federal minority business

4715assistance offices; and other organizations

4720that provide assistance in the recruitment

4726and placement of minority business

4731enterprises or minority persons.

473565. The burden of proof is upon the unsuccessful party to establish that it

4749is entitled to the award of the contract. Florida Department of Transportation

4761v. J.W.C. Co., Inc., 396 So.2d 778 (Fla. 1st DCA 1981). The challenging party

4775has the burden to establish that the agency's award resulted from illegality,

4787fraud, oppression, or misconduct and was not the result of a fair, full and

4801honest exercise of the agency's discretion. Liberty County v. Baxter's Asphalt

4812and Concrete, Inc., 421 So.2d 505 (Fla. 1982); Bay Plaza I v. Department of

4826Health and Rehabilitative Services, 11 FALR 2854 (April 11, 1989).

483666. An agency has broad discretion in soliciting and accepting bids and a

4849decision based on the honest exercise of its discretion may not be overturned by

4863a court even if reasonable people may disagree with the outcome. C.H. Barco

4876Contracting Co. v. Department of Transportation, 483 So.2d 796 (Fla. 1st DCA

48881986); Liberty County v. Baxter's Asphalt and Concrete, Inc., 421 So.2d 505

4900(Fla. 1982). The standard of review exercised by the judiciary is set out in

4914Culpepper v. Moore, 40 So.2d 366 (Fla. 1949) as follows:

4924. . . while the discretion vested in a

4933public agency in respect to letting public

4940contracts may not be exercised arbitrarily

4946or capriciously, . . . its judgment must be

4955bottomed upon facts reasonably tending to

4961support its conclusions, no mandatory

4966obligation is imposed upon such an agency to

4974consider the "lowest responsible bid" in

4980every case, to the exclusion of all other

4988pertinent factors which may well support a

4995reasonable decision to award the contract to

5002a contractor filing a higher bid. So long

5010as such a public agency acts in good faith,

5019even though they may reach a conclusion of

5027facts upon which reasonable men may differ,

5034the courts will not generally interfere with

5041their judgment, even though the decision

5047reached may appear to some persons to be

5055erroneous.

505667. The Administrative Procedures Act provides the procedural mechanism

5065for challenging an agency's decision to award or reject bids. "[T]he scope of

5078the inquiry is limited to whether the purpose of competition bidding has been

5091subverted. In short, the hearing officer's sole responsibility is to ascertain

5102whether the agency acted fraudulently, arbitrarily, illegally, or dishonestly."

5111Department of Transportation v. Groves-Watkins, 530 So.2d 912, 914 (Fla. 1988).

5122See also Scientific Games, Inc. v. Dittler Bros., 586 So.2d 1128 (Fla. 1 DCA

51361991).

513768. It is well established that the responsiveness of a bid is determined

5150as of the time the bids are made public. Palm Beach Group, Inc. v. Department

5165of Insurance and Treasurer, 10 FALR 5627, 5634 (Fla. Dept. of Insurance, 1988);

5178Harry Pepper & Associates v. City of Cape Coral, 352 So.2d 1190 (Fla. 2nd DCA

51931977).

519469. The Board of Regents, in the good faith exercise of its discretion

5207determined that Petitioner's bid was not responsive as submitted. The Board of

5219Regents required that at least fifteen percent of the project contracted amount

5231be expended with minority business enterprises certified by the Florida

5241Department of General Services as set forth under Chapter 287, Florida Statutes.

5253Centex-Rooney submitted four subcontractors as DGS certified; (for a total of

52649.56% participation at the time of its bid submittal) however, two of the four

5278were in fact, not certified by DGS at the time of bid opening as required by

5294Respondent's bidding documents. Thus, Petitioner's MBE participation was only

53035% at the time of bid opening. Respondent's administrative rules and the

5315bidding requirements serve to notify the bidders that they must utilize DGS

5327certified MBE's in proposals and that it is the bidder's responsibility to

5339ascertain that a listed MBE is certified by the DGS in the appropriate Specialty

5353Area to perform the services for which it is enlisted. However, even if the

5367disqualified subcontractors were included, Centex-Rooney would have had only

53769.5% MBE participation. Petitioner failed to meet the 15% goal for the BR-658

5389project, failed to ascertain that its listed MBE's were properly certified by

5401DGS at the time of bid submittal.

540870. Although the Petitioner represented to FAU, that it had obtained MBE

5420participation from two additional subcontractors not listed on its MBE

5430participation at the time of bid opening, and its MBE participation would be

544315.2%, the bidding documents clearly provide that MBE's must be listed with the

5456bid proposal at the time of bid opening. Otherwise, the competitive process

5468could be undermined.1 See E.M. Watkins Company v. Board of Regents, 414 So.2d

5481583 (Fla. 1 DCA 1982). Therefore, Respondent properly rejected Petitioner as

5492unresponsive in regard to 1.1.1 and 1.6.1 of the Special Conditions of the

5505Project Manual.

550771. Because Centex-Rooney did not meet the 15% MBE requirement, it was

5519required to show it had made a good faith effort. Respondent reviewed

5531Petitioner's good faith efforts and found them in non-compliance with at least

5543one factor, specifically 1.7.4 of the Special Conditions section of the Project

5555Manual. Section 1.7.4, supra, requires that bidders shall make no less than one

5568written follow-up contact per initial contact. In the event a positive response

5580is obtained, the Bidder shall request, in writing, a meeting between the MBE and

5594the Bidder's staff. Documentation required to demonstrate compliance with

56031.7.4. includes copies of letters, telegrams and/or meeting notes. Petitioner

5613submitted a telephone log to evidence compliance with 1.7.4, and the Respondent

5625found it insufficient to satisfy the requirements of 1.7.4. Clearly, the

5636telephone log is not a copy of a letter or a telegram, nor does it evidence a

5653written contact. The telephone log does not evidence that when a positive

5665response was received, the Bidder requested, in writing, a meeting with the MBE.

567872. The only letters submitted in Petitioner's initial good faith effort

5689documentation were presented as letters of solicitation to satisfy the

5699requirements of 1.7.3 of the Special Conditions. These January 9, letters do

5711not serve to satisfy any of the requirements for 1.7.4. As initial letters,

5724they are late having been sent January 9 for the January 16 bid opening. As

5739follow up letters, they clearly state that they are letters of invitation to bid

5753on the upcoming BR-658 project. They do not indicate whether a positive

5765response was received from the subcontractor, nor do they in any way evidence a

5779request for a meeting, nor do they memorialize a meeting between the Petitioner

5792and the interested MBE.

579673. Section of 1.7 of the Special Conditions plainly states which

5807documentation used to satisfy one particular requirement may also be used to

5819satisfy the requirements in another area, such as 1.7.5, 1.7.6. There is no

5832such allowance provided for section 1.7.3 and 1.7.4. Accordingly, Respondent

5842properly and reasonably determined that Petitioner was unresponsive to the

5852requirements of 1.7.3 and 1.7.4 in establishing its good faith efforts for this

5865project.

586674. Pursuant to Rule 6C-14.025(1), Florida Administrative Code, the

5875Respondent developed a plan to implement the Florida Small and Minority Business

5887Assistance Act of 1985 (as codified in Chapter 287, Florida Statutes). The

5899Special Conditions section of the Project Manual for the major construction

5910project sets out the good faith effort requirements contained in Chapter 287, as

5923well as the implementation of such statutes required by the State University

5935System, and the documentation required by the Respondent for satisfying the

5946eight statutory factors of good faith efforts. All of these requirements were

5958placed in Respondent's MBE plan to increase participation by minority business

5969enterprises in the state procurement system. See Anglin Construction Co. v.

5980Florida Board of Regents and Charles R. Perry Construction, DOAH Case No. 90-

59932652BID, September 19, 1990.

599775. Section 287.0945(3)(b), Florida Statutes, clearly provides the factors

6006that shall be considered by an agency in determining whether a contractor has

6019made good faith efforts, which shall include, but not be limited to, in

6032subparagraph (3)(b)4, whether the contractor followed up initial solicitations

6041of interest by contacting minority business enterprises or minority persons to

6052determine with certainty whether the minority business enterprises or minority

6062persons were interested. The Respondent's implementation of subparagraph

6070(3)(b)4 requires that the bidder shall make no less than one written follow-up

6083contact per initial contact. In the event a positive response is obtained, the

6096Bidder shall request, in writing a meeting between MBE and the Bidder's staff.

6109Copies of letters, telegrams and/or meeting notes are required to demonstrate

6120compliance with 287.0945(3)(b)4 as implemented.

612576. The Board of Regents interprets Section 287.0945(3)(b), Florida

6134Statutes, to require that the contractor "shall" meet all eight criteria

6145provided in the statute, as implemented by Respondent, before considering other

6156relevant factors that may support good faith efforts. The use of the word

"6169shall" in a statute, according to its normal usage, has a mandatory

6181connotation. Florida Tallow Corp. v. Bryan, 237 So.2d 308 (Fla. 4 DCA 1970). A

6195statute is to be taken, construed and applied in the form enacted. Blount v.

6209State, 102 Fla. 1100, 138 So. 2 (Fla. 1931). A construction placed on a statute

6224by the state officer or body charged with the responsibility for its enforcement

6237is persuasive. Volusia Jai-Alai, Inc. v. McKay, 90 So.2d 334 (Fla. 1956). An

6250administrative construction of a statute is entitled to great weight and will

6262not be overturned except for the most cogent reasons, and unless clearly

6274erroneous, unreasonable, or in conflict with some provision of the state

6285constitution or the plain intent of the statute. McKinney v. State, 83 So.2d

6298875 (Fla. 1955). The Respondent's interpretation of Section 287.0945 should be

6309given great weight, because its interpretation of the mandatory application of

6320the eight statutory factors is reasonable, consistent with the plain intent of

6332the statute, and not in conflict with any constitutional provisions.

634277. The Respondent reviewed Petitioner's good faith efforts and found that

6353it had completely failed to meet the follow-up requirements as published in the

6366bid documents. For the Respondent to excuse this deficiency would be contrary

6378to the mandatory requirements of Section 287.0945(3)(b), Florida Statutes. To

6388accept Centex-Rooney's good faith effort presentation as sufficient would be

6398contrary to the legislative intent of the statute and would represent to other

6411bidders that Respondent is not serious about its fifteen (15) percent MBE

6423participation requirement, its acceptance of good faith efforts, or its role in

6435assuring equal treatment among competitive bidders. See Dooley & Mack

6445Constructors, Inc. v. Board of Regents and Norwood Industrial Const., DOAH Case

6457No. 91-2703BID, August 19, 1991. Section 287.0945(3)(b) does not provide that

6468an agency may totally disregard non-compliance of a mandated statutory factor

6479because a particular bidder, such as Petitioner, did satisfy some of the other

6492factors which are considered in determining good faith effort. If the

6503Legislature had intended agencies to be able to disregard compliance with the

6515statutory criteria, it could have easily so provided. It did not.

652678. Petitioner only had 5% DGS certified MBE participation at the time of

6539bid opening. State Paving exceeded the 15% goal. A significant number of the

6552other bidders for the project were able to document 15% participation at the

6565time of bid opening. Follow-ups to initial contacts and meetings with

6576interested MBEs are an integral part of encouraging participation of MBEs in

6588state construction projects. By failing to comply with all the requirements to

6600establish good faith efforts, the Petitioner may have enjoyed an advantage in

6612its bid preparation over other qualified bidders who made the effort and took

6625the time needed to locate and commit eligible MBEs to work on this project.

663979. The statutory requirements and implementation by Respondent are a

6649material part of showing good faith effort to meet the MBE goal required for BR-

6664658. Accordingly, a failure to comply with 1.7.4, and 1.1.1 and 1.6.1 of the

6678Special Conditions for this project constitutes a material variance in

6688Petitioner's bid.

669080. The Board of Regents should protect the integrity of the bidding

6702process, and not allow the consideration of bids which are not responsive, for

6715competitiveness and confidence in the bidding process will be undermined if

6726bidders cannot rely on the bid specifications in submitting their bids. E.M.

6738Watkins & Company Inc. v. Board of Regents, 414 So.2d 583 (Fla. 1st DCA 1982).

675381. It is within the discretion of the Board of Regents whether or not to

6768reserve the right to grant a waiver of minor bid irregularities. Liberty City

6781v. Baxter's Asphalt and Concrete, Inc., supra. Even when an agency reserves the

6794right to waive minor bid irregularities, it is within the agency's discretion to

6807determine whether or not a waiver is appropriate. Id. Failure to comply with

6820Special Condition 1.7.4 is not a minor irregularity.

682882. A bid which contains a material variance is unacceptableopabest

6838Foods, Inc. v. Dept. of General Services, 493 So.2d 50 (Fla. 1st DCA 1986).

685283. An agency may not waive a material variance in a bid. Robinson

6865Electrical Co., Inc. v. Dade County, 417 So.2d 1032 (Fla. 3rd DCA 1982); Harry

6879Pepper and Associates v. City of Cape Coral, supra.

688884. The failure of Petitioner to comply with 1.1.1 and 1.6.1, and 1.7.4 of

6902the good faith effort requirements is a material irregularity, and thus, the

6914Respondent may not waive the deficiency. To do otherwise is unlawful and

6926undermines the integrity of the bidding process by rewarding a bidder who failed

6939to satisfy the requirements for a valid bid and send a message to future bidders

6954that the bidding requirements are not mandatory but merely directory.

696485. The Respondent did not act unlawfully, arbitrarily or capriciously in

6975rejecting Petitioner's bid as unresponsive.

6980RECOMMENDATION

6981Based upon the foregoing Findings of Fact and Conclusions of Law set forth

6994herein, it is,

6997RECOMMENDED:

6998That Centex-Rooney's bid for project BR-658 was properly rejected by the

7009Respondent, and that the Board of Regents may proceed with its award of the

7023contract to the Intervenor, State Paving.

7029DONE and ENTERED this ______ day of May, 1992, in Tallahassee, Florida.

7041_________________________________

7042STEPHEN F. DEAN, Hearing Officer

7047Division of Administrative Hearings

7051The DeSoto Building

70541230 Apalachee Parkway

7057Tallahassee, FL 32399-1550

7060(904) 488-9675

7062Filed with the Clerk of the

7068Division of Administrative Hearings

7072this ____ day of May, 1992.

7078APPENDIX

7079CASE NO. 92-2272BID

7082Board of Regent's proposed findings were read and considered. The findings

7093of the BOR were adopted except for Paragraph 22 which was deemed a conclusion of

7108law.

7109State Pavings' proposed findings were read and considered. The following

7119list indicated which findings were adopted, and which were rejected and why:

71311 through 3. Adopted.

71354. Was not specifically adopted, but is correct and is subsumed in other

7148findings.

71495. Subsumed in other findings. Rejected that Centex-Rooney "freely

7158admits" their bid failed to meet 15% requirement, a contrary to the evidence.

71716. Subsumed Paragraphs 32, 33 and 34.

71787. Subsumed Paragraphs 44, 45, 46 and 47.

71868. Subsumed Paragraph 50.

71909. Subsumed Paragraph 29 re documentation. Comments re Mr. Hamlin are

7201argument and rejected.

720410. Rejected in part a restatement of statutes and law, and subsumed in

7217other findings. Adopted that Centex-Rooney complied with 1.7.1, 1.7.2, and

7227failed to comply with 1.7.3 and 1.7.4. Centex-Rooney did comply with 1.7.5 and

72401.7.6 and 1.7.8. To the extent that the evidence in this case did not show

7255Centex-Rooney's good faith efforts, 1.7.7 was not proven.

726311. Rejected as argument.

726712. Subsumed Paragraph 35.

727113. Subsumed Paragraphs 39 and 41.

727714. Rejected as argument.

728115. Subsumed in Paragraphs 55, 56 and 57.

728916. Rejected as conclusion of law.

7295The Petitioner's proposed findings were read and considered. The following

7305list which of the findings were adopted, and which were rejected and why.

7318Paragraphs

73191 through 11. Adopted.

732312. Adopted, Paragraph 23.

7327ue; adopted in part in Paragraph and in Paragraphs 23 and 28.

733914 and 15. Rejected as irrelevant.

7345ue, subsumed in Paragraph 28.

735017. Subsumed in Paragraphs 32 and 46.

7357ue, but irrelevant. There was no allegation that Centex-Rooney

7366failed to advertise.

736919. Subsumed in Paragraphs 28 and 33.

737620. Subsumed in Paragraphs 32, 48 and 52.

7384ue but irrelevant because Centex-Rooney had fewer than 15%.

7393ue but irrelevant.

739623. Subsumed in various paragraphs.

740124. Subsumed in Paragraphs 28, 32, 33, 34 and 35.

7411ue subsumed in Paragraphs 36 and 37.

741826. Subsumed in Paragraphs 44, 46, 47, 50 and 51.

742827. Irrelevant because it does not establish compliance with 1.7.3 and

74391.7.4.

744028. BOR properly rejected this evidence which was presented after the bid

7452opening.

7453Copies furnished:

7455Charles B. Reed, Chancellor

7459Florida Board of Regents

7463State University System

7466325 West Gaines Street

7470Tallahassee, FL 32399-1950

7473James E. Glass, Esquire

74776161 Blue Lagoon Dr., Suite 350

7483Miami, FL 33126

7486Jane Mostoller, Esquire

7489325 W. Gaines St., Suite 1522

7495Tallahassee, FL 32399-1950

7498J. Victor Barrios, Esquire

75021026 Ease Park Avenue

7506Tallahassee, FL 32301

7509NOTICE OF RIGHT TO SUBMIT EXCEPTIONS:

7515ALL PARTIES HAVE THE RIGHT TO SUBMIT WRITTEN EXCEPTIONS TO THIS RECOMMENDED

7527ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST 10 DAYS IN WHICH TO SUBMIT

7541WRITTEN EXCEPTIONS. YOU SHOULD CONTACT THE AGENCY THAT WILL ISSUE THE FINAL

7553ORDER IN THIS CASE CONCERNING AGENCY RULES ON THE DEADLINE FOR FILING EXCEPTIONS

7566TO THIS RECOMMENDED ORDER. ANY EXCEPTIONS TO THIS RECOMMENDED ORDER SHOULD BE

7578FILED WITH THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE.

Select the PDF icon to view the document.
PDF
Date
Proceedings
Date: 09/08/1992
Proceedings: DCA Order: Appeal Dismissed filed.
Date: 08/03/1992
Proceedings: DCA Case No. 1-92-2621 filed.
Date: 07/17/1992
Proceedings: Final Order filed.
PDF:
Date: 07/14/1992
Proceedings: Agency Final Order
PDF:
Date: 07/14/1992
Proceedings: Recommended Order
Date: 06/19/1992
Proceedings: Centex-Rooney's Exceptions to Recommended Order filed.
PDF:
Date: 05/29/1992
Proceedings: Recommended Order sent out. CASE CLOSED. Hearing held 4-27-92.
Date: 05/15/1992
Proceedings: Respondent`s Proposed Findings of Fact, Conclusions of Law and Recommended Order filed.
Date: 05/11/1992
Proceedings: (State Paving Corp Proposed) Recommended Order filed.
Date: 05/11/1992
Proceedings: Respondent`s Proposed Findings of Fact, Conclusions of Law and Recommended Order filed.
Date: 05/11/1992
Proceedings: Centex-Proposed Recommended Order filed.
Date: 05/01/1992
Proceedings: Formal Hearing Transcript; Hearing Exhibits filed.
Date: 04/27/1992
Proceedings: CASE STATUS: Hearing Held.
Date: 04/24/1992
Proceedings: Intervenor's Response to Prehearing Stipulation filed.
Date: 04/24/1992
Proceedings: (joint) Prehearing Stipulation; Notice Sent to All Bidders w/cc Notice of Hearing & Prehearing Order filed. (From Jane Mostoller)
Date: 04/22/1992
Proceedings: Order Granting Intervention sent out. (State Paving Corporation`s Petitioner of leave to intervene granted)
Date: 04/22/1992
Proceedings: Petition for Leave to Intervene (filed by State Paving Corporation) filed.
Date: 04/16/1992
Proceedings: (State Paving Corp) Petition for Leave to Intervene filed.
Date: 04/14/1992
Proceedings: Order Granting Continuance and Amended Notice sent out. (hearing rescheduled for 4-27-92; Tallahassee)
Date: 04/10/1992
Proceedings: Notice of Hearing sent out. (hearing set for 4-17-92; 10:00am; Tallahassee)
Date: 04/10/1992
Proceedings: Prehearing Order sent out. (prehearing stipulation required by this order shall be filed no later than 2 working days before the hearing)
Date: 04/09/1992
Proceedings: Agency referral letter; Petition for Formal Written Protest filed.

Case Information

Judge:
STEPHEN F. DEAN
Date Filed:
04/09/1992
Date Assignment:
04/09/1992
Last Docket Entry:
09/08/1992
Location:
Tallahassee, Florida
District:
Northern
Agency:
ADOPTED IN TOTO
Suffix:
BID
 

Related DOAH Cases(s) (2):

Related Florida Statute(s) (2):

Related Florida Rule(s) (1):