92-002272BID
Centex-Rooney Construction Company Inc. vs.
Board Of Regents
Status: Closed
Recommended Order on Friday, May 29, 1992.
Recommended Order on Friday, May 29, 1992.
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.
- 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.
- Date: 06/19/1992
- Proceedings: Centex-Rooney's Exceptions to Recommended Order filed.
- 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.