93-002740BID Opus South Corporation vs. Board Of Regents Status: Closed Recommended Order on Thursday, July 29, 1993.

Summary: Good faith effort criterion made nonmaterial where list of minority organiza tions given to only some bidders and where compliance a meaningless act.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

OPUS SOUTH CORPORATION, )

)

Petitioner, )

)

vs. ) CASE NO. 93-2740BID

)

BOARD OF REGENTS, )

)

and )

)

GREENHUT CONSTRUCTION COMPANY, INC., )

)

Respondent. )

_____________________________________)

RECOMMENDED ORDER

Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned Hearing

Officer of the Division of Administrative Hearings, on June 4, 1993, in

Tallahassee, Florida.

APPEARANCES

For Petitioner: W. Robert Vezina, III, Esquire

Mary M. Piccard, Esquire

Board of Regents

Cummings, Lawrence & Vezina, P.A.

1004 DeSoto Park Drive

Post Office Box 589

Tallahassee, Florida 32399-0589

For Respondent: Jane Mostoller, Esquire

Gregg A. Gleason, Esquire

Board of Regents

Office of General Counsel

325 West Gaines Street, Suite 1522

Tallahassee, Florida 32399-1950

For Intervenor: Robert A. Emmanuel, Esquire

Emmanuel, Sheppard & Condon

30 South Spring Street

Post Office Drawer 1271

Pensacola, Florida 32596

STATEMENT OF THE ISSUE

The issue presented is whether Petitioner is the lowest, responsive bidder

on Board of Regents' Project BR-787.

PRELIMINARY STATEMENT

Upon notification from Respondent Board of Regents that it intended to

reject the bid of Petitioner Opus South Corporation and award the bid to

Intervenor Greenhut Construction Company, Inc., Petitioner timely filed its

notice of protest and formal protest to that intended bid award. This cause was

thereafter transferred to the Division of Administrative Hearings for a formal

proceeding regarding the Board's intended award. Petitioner presented the

testimony of Joseph Dusek, Ed Hewes, and Patricia Jackson. The Intervenor

presented the testimony of Leonard Monks. Additionally, Joint Exhibits numbered

1-13, Petitioner's Exhibits numbered 1-6, Respondent's Exhibit numbered 1, and

Intervenor's Exhibits numbered 1-5 were admitted in evidence. All parties

submitted post-hearing proposed findings of fact in the form of proposed

recommended orders. A specific ruling on each proposed finding of fact can be

found in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. A Call for Bids was issued by the Respondent Board of Regents

(hereinafter "Board") for Project BR-787 for the expansion and renovation of the

University of West Florida Library.

2. The Call for Bids provides that at least 15 percent of the project

contract amount must be expended with Minority Business Enterprises (hereinafter

"MBEs") certified by the Department of General Services (now known as the

Department of Management Services) as set forth under the Florida Small and

Minority Business Assistance Act, Chapter 287, Florida Statutes. That document

further provides that if the 15 percent minority participation is not obtained,

the Board would require the apparent low bidder to provide evidence of its good

faith efforts to meet that goal. Lastly, that document advises potential

bidders to review the requirements for MBE participation in the Special

Conditions in order to schedule the necessary tasks to accomplish such good

faith efforts.

3. The Project Manual, Volumes 1 and 2, contains the bidding requirements,

including the general and special conditions, specifying the good faith effort

requirements applicable to all bidders.

4. The Project Manual, Instructions to Bidders, provides that the award of

the contract is subject to the demonstration of good faith efforts by any bidder

whose bid proposes less than 15 percent participation in the contract by MBEs.

The required good faith effort to be demonstrated is set forth in the Special

Conditions. That section further provides that the contract will be awarded by

the Board to the lowest qualified and responsible bidder, provided the bid is

reasonable and is in the best interest of the Board to accept it.

5. The Project Manual, Special Conditions, provides that if the bid does

not contain the required 15 percent participation by certified MBEs, then the

apparent low bidder will be required to provide evidence of good faith efforts

within two working days after the opening of bids. It further provides that

incomplete evidence not fully supporting each of the eight requirements of

Paragraph 1.7 of the Special Conditions shall constitute cause for determining

the bid to be unresponsive, except that the Board may, at its option, seek

supplementary evidence not submitted by the bidder.

6. Special Conditions 1.7.1 through 1.7.8 of the Project Manual contain

eight factors relating to the bidders' obligations to make and document a good

faith effort to meet the MBE goal. The factors listed to be considered by the

Board are an almost verbatim recitation of the eight factors listed in Section

287.0945(3)(b), Florida Statutes.

7. Leonard Monks, Chair of the University of West Florida's MBE Advisory

Committee conducted a pre-bid/pre-solicitation meeting for Project BR-787 on

December 7, 1992. Among other things, he discussed the MBE participation

program and handed out a packet of materials to those in attendance at the pre-

bid meeting. That packet included a General Instructions sheet regarding the

University's MBE Advisory Committee and the requirement that the MBEs utilized

must be certified. That Instruction sheet further advised that a listing of all

known certified sources was available from the University's Purchasing Office,

the office of which Monks was the Director.

8. Attached to that General Instructions sheet were a sample checklist to

be used by the University's MBE Advisory Committee in evaluating a bidder's good

faith efforts and a separate multi-page document entitled Florida Department of

Management Services Certified Minority Business Enterprises. In response to a

question from one of the attendees, the potential bidders were informed that the

list referenced in the General Instructions was the same list provided in the

packet distributed at the meeting.

9. Both Joseph Dusek and Ed Hewes attended the pre-bid/pre-solicitation

meeting on behalf of Petitioner Opus South Corporation (hereinafter "Opus").

Both of them understood that the list handed out during that meeting contained

both the certified MBEs and the community and minority organizations which they

were expected to contact. Their review of that list revealed not only MBEs,

some of whom were known to them to be MBEs, but also businesses whose names

suggested they were minority organizations. For example, the list contained a

business called Minority Business Consultants & Contractors, Inc., and a

business called Minority Specialty Services, Inc. When they reviewed the list

in more detail after this dispute arose, they realized that those businesses

with names sounding like minority business assistance organizations were simply

MBEs.

10. After the meeting, Dusek and Hewes divided between them the work to be

performed in submitting a bid for the project. Dusek took primary

responsibility for preparing Opus' estimate of the cost involved, and Hewes took

primary responsibility for MBE compliance and good faith effort documentation.

Opus did not contact Monk's office for any additional information subsequent to

the pre-bid meeting and prior to the time of bid opening since Opus did not know

that Monk's office had additional information it had not provided to Opus.

11. In addition to placing a newspaper ad and taking other steps to comply

with the good faith effort requirement, Opus sent initial letters to all of the

businesses on the list provided to it at the pre-bid conference. That initial

solicitation letter was sent by Opus to 72 certified MBEs.

12. As a result of that initial letter, Opus received bids, indications of

interest, and advice from several of those businesses that the businesses were

not interested in bidding the project. When Opus sent its follow-up

solicitation letter, it did not send a follow-up letter to 3 of the 72

businesses which had specifically advised Opus they were not interested in

bidding the project. Accordingly, Opus only sent follow-up solicitation letters

to 69 certified MBEs.

13. As a result of Opus' erroneous assumption that the list of certified

MBEs provided at the pre-bid conference also included minority community

organizations, Opus did not send copies of the information provided to certified

MBEs to any minority community organizations providing assistance to MBEs.

14. On December 22, 1992, Opus, Intervenor Greenhut Construction Company,

Inc. (hereinafter "Greenhut"), and 6 other contractors submitted bids on Project

BR-787. All eight bids for BR-787 came in below the Board's budget for the

project. None of the eight bids submitted for the project contained any MBE

involvement.

15. Opus was the apparent low bidder. Opus' bid was $5,959,100, and the

next lowest bid was from Greenhut, in the amount of $6,010,000.

16. Since the bid submitted by Opus did not contain the required certified

MBE participation of 15 percent, the Board requested Opus to submit

documentation to demonstrate its good faith effort in obtaining MBE

participation. Opus submitted its initial good faith documentation package on

December 23, 1992, and later supplemented that good faith effort package with

additional documentation.

17. Paragraph 1.7 of the Special Conditions of the bid documents sets out

the good faith requirements for the project and itemizes the requirements of the

Board as to what documentation would provide evidence of satisfaction of the

eight factors to be considered in evaluating the good faith efforts of a bidder.

Subparagraphs 1.7.4 and 1.7.8 cite to the specific statutory factors and provide

as follows:

1.7.4 Statute 287.0945(3)(b)4

.1 STATUTORY REQUIREMENTS: Whether the contractor

followed up initial solicitations of interest by

contacting minority business enterprises or minority

persons to determine with certainty whether the

minority business enterprises or minority persons were

interested;

.2 IMPLEMENTATION REQUIRED BY THE STATE UNIVERSITY

SYSTEM: The Bidder shall make no less than one

written follow-up contact per initial contact. In the

event a positive response is obtained, the Bidder

shall request, in writing, a meeting between MBE and

the Bidder's staff.

.3 DOCUMENTATION REQUIRED: Copy of letters,

telegrams, and/or meeting notes required as evidence.

* * *

1.7.8 Statute 287.0945(3)(b)8:

.1 STATUTORY REQUIREMENTS: Whether the contractor

effectively used the services of available minority

community organizations; minority contractors' groups;

local, state, and federal minority business assistance

offices; and other organizations that provide

assistance in the recruitment and placement of

minority business enterprises or minority persons.

.2 IMPLEMENTATION REQUIRED BY STATE UNIVERSITY SYSTEM:

Did the Bidder send copies of the information provided

under Subparagraphs 1.7.2 and 1.7.3 to the

organizations, groups, and offices listed in 1.7.8.1.

.3 DOCUMENTATION REQUIRED: Copies of information sent

to such organizations, groups, and offices, at least

one week prior to bid date required as evidence.

18. Opus' transmittal letter of its good faith efforts package outlines

the documentation being submitted. The letter does not mention any contact with

minority community or business assistance organizations. Monks, the Chair of

the University's MBE Advisory Committee, contacted Hewes and inquired about the

absence of documentation for organization contact. Hewes advised Monks that

minority organizations had been contacted based on the fact that Opus had

contacted every organization on the list given it by Monks. Monks then advised

Hewes that there were other organizations that were supposed to be contacted

that were not on that list but rather were on a different list that had been

available in his office but that had not been provided to all of the bidders at

the pre-bid meeting. The list, however, had been provided to some of the other

bidders who had specifically called and asked for it prior to submission of the

bids. The existence of that separate list was not disclosed to all of the

bidders who attended the pre-bid meeting.

19. Monks sent to Opus by FAX transmission the list which had been given

to only some of the bidders. That list contains the names of nine "area

advertisers," a category not relevant to this proceeding since Opus did place an

advertisement as part of its good faith efforts. The list also contains eight

names under the heading "area business and community organizations." Included

within those eight are the Dodge Reports, the Northwest Florida Chapter of the

Associated General Contractors of America, and the Small Business Development

Center.

20. The Small Business Development Center is an entity which is part of

the University of West Florida. "Pete" Singletary is the Director of the

University of West Florida's Small Business Development Center. He attended the

pre-bid meeting and therefore knew who the bidders were who attended that

meeting and knew of the opportunity for certified MBEs to participate in the bid

for the project. He is also on the University's MBE Advisory Committee.

Accordingly, the Small Business Development Center was aware that bids were

being solicited for the library expansion/renovation project.

21. Upon receiving a copy of the second list, by letter dated December 29,

1992, Hewes advised Monks that Opus had in fact contacted Dodge Reports and

enclosed a copy of the documentation reflecting that to be true. Hewes also

advised Monks that contact had been made with Associated General Contractors.

In fact, Joseph Dusek of Opus is the vice president and sits on the board of

directors of that organization. Written notice was not, however, submitted to

that organization by Opus.

22. The University's MBE Advisory Committee met on December 30, 1992, and

reviewed Opus' good faith efforts documentation. The Committee members used a

checklist which was not a part of the bid documents but which had been provided

at the pre-bid meeting. In essence, the checklist contains a synopsis of the

eight factors to be considered, as set forth by statute and in Special Condition

1.7, and a yes/no column to be marked. The checklist itself required that all

questions be marked "yes" in order to declare the apparent low bidder

responsive, a requirement not found in the statute.

23. The three members of the Advisory Committee checked the yes columns

for the items on the checklist except one. The seventh item on the checklist

provides as follows: "Did the apparent low bidder provide copies of information

to minority committee organizations and to minority contractor groups at least

one week prior to bid opening." Each of the committee members answered that

question, not by checking yes or no for that item, but rather by commenting that

although Opus had not contacted minority organizations, Opus had in substance

made a good faith effort because Opus had contacted every available MBE

directly.

24. By memoranda dated January 4 and January 12, 1993, the University of

West Florida informed the Board's Office of Capital Programs of its

determination that Opus had made the necessary good faith effort to obtain MBE

participation and recommended that the contract be awarded to Opus. In making

its recommendation, the University explained that the Advisory Committee had no

difficulty determining that Opus had made a good faith effort but did have

difficulty conforming that determination to the check list which it was required

to use. The University further explained as follows:

The obvious intent of Item 7, "Did the apparent low

bidder provide copies of information to minority

community organiza t c a r t n o c y t i r o n i m o t d n a s n o i t
o r

groups at least one week prior to bid opening," is to

reach those certified (S)MBE firms that may be

interested and may need assistance in bidding the

project. It is but one more method of reaching the

individual (S)MBE firms.

Opus South wrote to each of the certified (S)MBE firms

listed in a packet handed out to all potential bidders

at the pre-bid conference indicating not only those

(S)MBE firms in the region but also those elsewhere in

the state (i.e., Tampa, Ocala) who had indicated an

interest and capability to do work statewide. If,

after being contacted they needed assistance, which one

could assume they would, in turn and on their own, they

could seek out such minority community organizations,

minority contractor groups, small business development

centers, and other such organizations.

In addition to corresponding with all (S)MBE firms,

Opus South subsequently verified to the University's

committee by their letter dated December 29, that

contact was made with the AGC (Associated General

Contractors of America) via F. W. Dodge's Office here

in Pensacola.

NOTE: It was the opinion of some members of the

committee that on Item 4.A., wherein it asked "Did the

apparent low bidder provide a reasonable number of

letters to show that MBEs were solicited from the

available trade areas listed in the DGS MBE Directory,"

if the contractor was "marginal" in his show of

numbers, then Item 7 would be one way to further

substantiate his claim. If, however, on Item 4.A., the

contractor contacted directly all such certified

(S)MBEs having indicated an interest, the instructions

should/could read: Item 7 need not apply.

In consideration of the above reasoning, and with the

full review of the very pertinent comments by the

individual commit e h t g n i y f i r a l c ( s r e b m e m e e t
i r

respective checkmarks), we find no reasonable evidence

nor cause to reject said submittal and thus find it to

be in compliance.

Opus was notified in writing as to the University's recommendation that the

contract should be awarded to Opus.

25. Patricia Jackson, the Board's administrator responsible for contract

awards, reviewed the Committee's recommendation. She rejected the

recommendation of the Committee based on the Board's unwritten policy that

unless each member of the Committee checks "yes" for each item on the checklist,

the Board will not accept a finding that a bidder is in compliance with all

requirements. She further determined that Opus' bid should be rejected because,

in her opinion, the Committee had not reached a consensus. That opinion can

only be based on a misunderstanding of the meaning of the word "consensus"

because each of the Committee members were in agreement as to the proper

interpretation of Special Condition 1.7.8 and were in agreement that the

contract should be awarded to Opus.

26. Jackson notified the Committee that Opus did not meet Special

Condition 1.7.8 and directed the Advisory Committee to meet again. As a result,

the Committee agreed to reject Opus' bid as directed by Jackson, reviewed the

bid and good faith efforts of Greenhut, and recommended that the contract be

awarded to Greenhut.

27. In directing the Advisory Committee to reconvene and reject Opus' bid

in compliance with Jackson's instructions, John Jarvis, the project manager and

Director of the University's Facilities Planning and Management, explained the

Board's staff's decision as follows:

Attached, for your information, action and files, is

the subject response/ruling dated January 21, 1993, by

the Office of Capital Programs (OCP) as regards the

findings of the UWF Minority Business Enterprise

Advisory Committee recommendation; i.e., that the

consensus-recommendation of said committee was that the

contractor was in-compliance. This was not acceptable

at the Board staff level, on the grounds that the

submittal does not comply with the subparagraph 1.7.8

of the project manual special conditions (see copy of

excerpt attached) as regards question 7 of the

checklist.

With this ruling, this is to request you, as the

university minority business officer, officially notify

(I assume in writing) the apparent low bidder that good

faith effort requirements are not in compliance with

contract documents (see attached excerpt copy of

standard practice 00-0000-3-04-01, page 4 of 5,

addressing good faith effort determina
t i o n . S e e t h e

standard practice cited for special requirements:

express mail (return receipt requested), submittal

deadlines, and such.

Note: you have been copied all other pertinent

correspondence and submittals to Tallahassee. This

writer and Mr. Martin have exerted much time and effort

in the questioning of the "verbatim" reading of the

CMBE good faith effort compliance checklist versus a

'commonsense' approach and methodology. And, although

it has proved to be to no avail on this project the

Board offices are looking at the entire CMBE process.

We will see changes forthcoming. In the meantime, this

ruling stands, and we must proceed to the next step.

28. Subsequently, Jackson again reviewed the bid of Opus and determined

that Opus had not sent follow-up letters to three of the certified MBEs

initially contacted. Jackson determined that Opus' bid should have also been

rejected for failure to send the three follow-up letters. However, the Board's

unwritten interpretation of the condition relating to follow-up letters is that

if an MBE responds to an initial contact by informing the contractor that the

MBE does not wish to participate in the project, the Board does not require a

follow-up letter. There is no requirement that the MBE express its lack of

interest in writing, and there is no requirement that the contractor document

the MBE's expression of no interest. The only MBEs to whom Opus did not send

follow-up letters were those which had informed Opus they did not wish to

participate in the contract. Accordingly, under the Board's unwritten

interpretation of Special Condition 1.7.4, Opus was in compliance with that

Condition.

29. Greenhut, the next apparent low bidder, submitted its good faith

efforts documentation for review. Greenhut's good faith efforts submittal was

found to be in compliance with all requirements, and Greenhut was determined to

be the lowest responsive bidder. Greenhut was awarded the contract for the

project by the Chancellor of the Board on April 2, 1993.

30. Greenhut's good faith efforts documentation revealed that Greenhut had

contacted fewer certified MBEs than had Opus. Greenhut, however, had contacted

several community and minority organizations.

31. When Jackson, from the Board's staff, reviewed the good faith efforts

documentation submitted by Greenhut, she determined that Greenhut had complied

with the requirement to contact minority and community organizations for the

sole reason that Greenhut had contacted the University of West Florida's Small

Business Development Center. She determined that not only did the other

minority and community organizations contacted by Greenhut not qualify as

organizations that render the type of minority assistance contemplated by the

statute and the Project Manual, but also that the only organization which she

would approve as a qualifying organization was the Small Business Development

Center.

32. Since the only organization which the Board's staff would approve as

qualifying to meet Special Condition 1.7.8 was the Small Business Development

Center, then, in fact, Opus' bid was rejected due to Opus' failure to contact

the Small Business Development Center, which is part of the University of West

Florida and whose director is on the University's MBE Advisory Committee and who

attended the pre-bid meeting in person. Accordingly, the rejection was for

failing to notify one specific entity which had full knowledge of the bid

solicitation. In other words, Opus' bid was rejected for failing to notify the

University itself.

33. Although notification to minority organizations may well be a material

condition in most situations, where, as here, the only organization which

qualifies is the University, the condition cannot be considered material. Since

notifying the University as to the contents of documents given to the bidders by

the University would be a futile and senseless act, a condition requiring that

cannot logically be considered a material condition. It is a technicality only

since performing it is not likely to increase MBE participation.

34. There were several MBEs who contacted the Small Business Development

Center regarding the bid solicitation for Project BR-787. Opus had contacted

each one of those MBEs directly. Accordingly, had Opus contacted the Center, it

would only have made contact with the same MBEs through a different route. Opus

received no economic advantage by not sending a letter to the Small Business

Development Center advising it that Opus intended to bid on the project, a fact

the Center already knew.

35. The Board determined that the failure of Opus to send a letter to the

Small Business Development Center was a material, non-waiveable irregularity

which rendered Opus' bid non-responsive. The Board reached this conclusion not

because it affected the amount of MBE participation or provided Opus an economic

advantage over the other bidders. Rather, the Board determined the irregularity

was material because it deviated from the Board's interpretation of Section

287.0945, Florida Statutes. The Board took this position even though it

recognizes that the statute does not mandate bid rejection in such

circumstances.

36. No explanation has been offered for the University's failure to

provide the second list--the list containing the names of several organizations

including the Small Business Development Center--to all bidders. Withholding

the list from the bidders who attended the pre-bid meeting did not promote the

purposes of the MBE program. Moreover, the provision of that list to some of

the bidders without providing the list to all of the bidders subverted the

competitive bidding process by giving some of the bidders an unfair advantage

over the others.

CONCLUSIONS OF LAW

37. The Division of Administrative Hearings has jurisdiction over the

parties hereto and the subject matter hereof. Section 120.57(1), Florida

Statutes.

38. Opus, like the other seven bidders, included no MBE participation in

its bid. Therefore, it was necessary for Opus to submit documentation to show

that it had engaged in good faith efforts to secure MBE participation. It was

then incumbent upon, first, the Advisory Committee and, second, the Board to

make a good faith determination as to the sufficiency of Opus' good faith

efforts. The Advisory Committee did so; the Board did not.

39. Section 287.0945(3)(b), Florida Statutes, enumerates the factors to be

considered in determining whether a contractor has made good faith efforts. The

statute does not specify that all of the eight criteria must be met; rather, the

statute requires that the eight criteria be considered as factors in evaluating

good faith efforts. The statute itself does not mandate rejection of a bid that

fails to meet any criterion; rather, the statute contemplates an evaluation of

the efforts made in relation to the particular project being considered.

Although the Board's position is that it has no discretion in interpreting the

statute, the statute does not contain language which suggests an absence of

discretion. Because of its belief that it possess no discretion, the Board has

determined that all of the statutory criteria are material and non-waiveable,

even under the facts of this case. Such an approach is arbitrary.

40. The Advisory Committee in good faith evaluated the documentation

submitted by Opus. In correspondence to the Board, the Committee indicated that

it had no problem determining that Opus had engaged in good faith efforts; the

problem the Committee had was trying to fit those efforts into the form the

Committee was required to use. The Committee reached a consensus that Opus' bid

was responsive and recommended the award to Opus. The Committee later

recommended the award to Greenhut only because the Board's staff advised the

Committee that the Committee was not permitted to reach the recommendation which

it had reached. The Board's insistence on Opus complying with the form rather

than evaluating the substance of Opus' good faith efforts is arbitrary.

41. The Board's staff determined that Opus had failed to meet Special

Condition 1.7.4 in that Opus failed to send follow-up letters to three certified

MBEs to whom Opus had sent initial solicitation letters. Opus sent follow-up

letters to all certified MBEs to whom it had sent the initial letter but for

those MBEs which had advised Opus they were not interested. The Board's

representative testified that it was acceptable to not send follow-up letters to

MBEs who had advised Opus they were not interested. Accordingly, Opus did meet

Special Condition 1.7.4. Rejecting Opus' bid on that basis was arbitrary.

42. As to Special Condition 1.7.8, it is the Board's position that Opus

failed to contact any minority organizations. Opus admits that it did not.

Prior to submitting its bid, Opus, in good faith, thought that it had contacted

such entities. It was wrong. The record reveals, however, that had Opus done

so, such contact would not have been acceptable to the Board's staff since there

was only one entity which the Board's staff considered qualified as such an

organization--the University's own Small Business Development Center. Under the

Board's interpretation, a bidder receiving bid documents from the University was

required to then notify the University that those bid documents existed. The

Board's position is irrational and, therefore, arbitrary.

43. Although the failure to contact community and minority organizations

may well be a material defect in many situations, the failure to contact in this

case can only be a minor or technical irregularity, not a material one, since

the Board's staff would only approve one organization which was part of the

entity letting the bid. Material irregularities are those which, if waived,

would provide the contractor with a palpable economic or competitive advantage

not enjoyed by the other bidders or which would deprive the government of its

assurance that the contract will be entered into and performed in accordance

with the Invitation to Bidopabest Foods, Inc. v. Department of General

Services, 493 So.2d 50 (Fla. 1st Dist. 1986); Robinson Electrical Co. v. Dade

County, 417 So.2d 1032 (Fla. 3rd Dist. 1982). Opus received no competitive

advantage by failing to send the letter to the Small Business Development Center

and the substance of the contract has not been affected thereby. Under the

facts of this case, Opus' failure to send the letter is not a material defect in

its bid. Accordingly, Opus was the lowest responsive bidder on the project in

question.

44. Even if the Board's position that the Small Business Development

Center at the University was required to be notified of the existence of the

bidding opportunity, although the director of that Center attended the pre-bid

meeting, were reasonable, some bidders were given an advantage in the bidding

process because they were given a list containing the name of the Center while

other bidders were not provided with that list. When the University provided

that list of organizations to some of the bidders without providing it to

others, the entire purpose of the competitive bidding process was subverted.

45. The Board's representative acknowledged that it was unfair to provide

some bidders with a list identifying the Small Business Development Center

without providing that list to all the bidders. Accordingly, by the Board's own

admission, the bidders were not treated equally and fairly. The primary concern

in public bidding is the integrity of the competitive bidding process. Moore v.

Dept. of Health and Rehabilitative Services, 596 So.2d 759 (Fla. 1st Dist.

1992). The integrity of the bidding process is violated when some bidders are

provided information which is withheld from others.

46. A decision is arbitrary when it is not supported by facts or logic or

is despotic. Agrico Chemical Co. v. Dept. of Environmental Regulation, 365

So.2d 759, 763 (Fla. 1st Dist. 1978). The Board's decision to reject the bid of

Opus is not supported by facts or logic and is, therefore, arbitrary.

RECOMMENDATION

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

RECOMMENDED that a Final Order be entered awarding Contract No. BR-787 to

Petitioner Opus South Corporation.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 29th day of

July 1993.

___________________________________

LINDA M. RIGOT

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 29th day of July, 1993.

APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 93-2740BID

1. Petitioner's proposed findings of fact numbered 1-7, 9-37, and 41-43

have been adopted either verbatim or in substance in this Recommended Order.

2. Petitioner's proposed finding of fact numbered 8 has been rejected as

not being supported by the weight of the evidence in this cause.

3. Petitioner's proposed findings of fact numbered 38, 39, and 44 have

been rejected as being unnecessary for determination of the issues herein.

4. Petitioner's proposed finding of fact numbered 40 has been rejected as

not constituting a finding of fact but rather as constituting argument of

counsel, conclusions of law, or recitation of the testimony.

5. Respondent's proposed findings of fact numbered 1-3, 5, 9, 11-15, 17-

26, 30-33, 35, 36, 40 and 44 have been adopted either verbatim or in substance

in this Recommended Order.

6. Respondent's proposed findings of fact numbered 16, 28, 29, 47, and 48

have been rejected as not supported by the weight of the evidence in this cause.

7. Respondent's proposed findings of fact numbered 4, 6-8, 10, 38, 39, and

45 have been rejected as being unnecessary for determination of the issues

herein.

8. Respondent's proposed findings of fact numbered 27, 34, 37, and 46 have

been rejected as not constituting a finding of fact but rather as constituting

argument of counsel, conclusions of law, or recitation of the testimony.

9. Respondent's proposed findings of fact numbered 41-43 have been

rejected as being irrelevant to the issues herein.

10. Intervenor's proposed findings of fact numbered 1-5, 9-15, and 17-26

have been adopted either verbatim or in substance in this Recommended Order.

11. Intervenor's proposed finding of fact numbered 28 was not supported by

the weight of the evidence in this cause.

12. Intervenor's proposed findings of fact numbered 6-8 and 16 have been

rejected as being unnecessary to the issues involved herein.

13. Intervenor's proposed finding of fact numbered 27 has been rejected as

not constituting a finding of fact but rather as constituting argument of

counsel, conclusions of law, or recitation of the testimony.

COPIES FURNISHED:

Jane Mostoller, Esquire

Gregg A. Gleason, General Counsel

Board of Regents

Office of General Counsel

Suite 1522

325 West Gaines Street

Tallahassee, Florida 32399-1950

W. Robert Vezina, III, Esquire

Mary M. Piccard, Esquire

Cummings, Lawrence & Vezina, P.A.

1004 DeSoto Park Drive

Post Office Box 589

Tallahassee, Florida 32399-0589

Robert A. Emmanuel, Esquire

Emmanuel, Sheppard & Condon

30 South Spring Street

Post Office Drawer 1271

Pensacola, Florida 32596

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended

Order. All agencies allow each party at least 10 days in which to submit

written exceptions. Some agencies allow a larger period within which to submit

written exceptions. You should contact the agency that will issue the final

order in this case concerning agency rules on the deadline for filing exceptions

to this Recommended Order. Any exceptions to this Recommended Order should be

filed with the agency that will issue the final order in this case.

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARING

OPUS SOUTH CORPORATION,

Petitioner,

vs. CASE NO. 93-2740BID

STATE OF FLORIDA BOARD OF REGENTS,

Respondent,

and

GREENHUT CONSTRUCTION,

Intervenor.

____________________________________/

FINAL ORDER

The Florida Board of Regents, having received the Recommended Order

(reproduced herein) entered in this case by Linda M. Rigot, Hearing Officer,

Division of Administrative Hearings, dated July 29, 1993, hereby adopts the

findings of fact, conclusions of law, and recommendation contained in the

Recommended Order. Greenhut Construction, Intervenor in this bid protest, filed

exceptions to the Recommended Order which are addressed below.

RULINGS ON INTERVENOR'S EXCEPTIONS

1. Intervenor excepts to Finding of Fact number 22 in the Recommended

Order from the Hearing Officer. Upon a complete review of the record, it is

determined that the Hearing Officer's finding was based upon competent and

substantial evidence. The Hearing Officer found that while the checklist and

the Special Conditions required compliance with all eight good faith factors to

be responsive, Section 287.0945(3)(b), F.S. required consideration of all eight

good faith factors. The Hearing Officer did not ignore the checklist or the

bidding requirements in the Special Conditions. The Hearing Officer found that

Opus' noncompliance with the minority assistance organization requirement was a

technicality that should have been waived under the particular facts of this

case. Finding of Fact number 22 is supported by the record. Intervenor's

exception is rejected.

2. Intervenor excepts to Finding of Fact no. 23. Upon a complete review

of the record, it is determined that the Hearing Officer's finding was based on

competent, substantial evidence. The question of available minority business

enterprises ("MBE") was considered by the university advisory committee and the

Board. Neither entity took issue with the number of MBE contacted by Opus for

this project. The introduction by Greenhut of the DMS/MBE directory did not

preclude the inference that the MBEs contacted by Opus were those available as

determined by the Advisory Committee. It is the Hearing Officer's function to

consider all of the evidence presented, resolve conflicts, judge credibility of

witnesses, draw permissible inferences from the evidence, and reach ultimate

findings of fact based on competent, substantial evidence. Heifetz v.

Department of Business Regulation, Division of Alcoholic Beverages & Tobacco,

475 So. 2d 1277 (Fla. 1st DCA 1985). The Hearing Officer's finding is supported

by the record. The Intervenor's exception is rejected.

3. Intervenor excepts to Finding of Fact number 32 of the Recommended

Order. The exception is rejected because the finding is supported by competent,

substantial evidence in the record. Intervenor now disputes Ms. Jackson's

testimony regarding minority assistance organizations. Ms. Jackson testified

that while the organizations contacted by Greenhut did provide some assistance,

only the contacted Small Business Development Center ("SBDC") located at the

University of West Florida, provided the level of assistance that she would

recognize as satisfying the criteria for the minority assistance organization

factor in regard to this construction project. Accordingly, the Hearing

Officer's finding in regard to the SBDC is supported by the record. Under the

Heifetz decision, an agency may not substitute inferences for those of the

hearing officer even if the record would support conflicting findings.

Additionally, Greenhut never disputed or rebutted Ms. Jackson's testimony at the

hearing or in its proposed recommended order. The Intervenor's exception is

rejected.

4. Intervenor excepts to Finding of Fact number 33. Upon a complete

review of the entire record, it is determined that the finding is based upon

competent, substantial evidence. In regard to this exception, Greenhut again

argues that Ms. Jackson's position on the minority assistance organization

requirement for this project was erroneous. Greenhut did not raise this as an

issue at any stage of the bid protest process. The Hearing Officer's finding is

consistent with the record, and she is authorized to weigh the evidence

presented and judge credibility of the witnesses. The Hearing Officer found the

organization contact requirement was a technicality under the particular

circumstances of this case. The exception is rejected.

5. Intervenor excepts to Finding of Fact number 35. However, after a full

review of the record, it is determined that the Hearing Officer's finding is

based on competent, substantial evidence. The finding regarding the Board's

conclusion is a permissible inference by the Hearing Officer, even though some

other finding might also have been supportable. The exception is rejected.

6. Intervenor excepts to Finding of Fact number 36. In Finding of Fact

number 36, the Hearing Officer found that the "second [UWF] list" which

contained the names of organizations, including the SBDC, had been provided to

some but not all of the contractors. Unrebutted evidence was presented that

Opus did not receive the list. The record does not establish, as now argued by

Greenhut in this exception, that Greenhut did not receive the second list. No

evidence was presented with respect to whether Greenhut received the list. Mr.

Hewes testimony regarding the second list was not objected to or disputed at the

hearing. The Hearing Officer made a finding based on competent, substantial

evidence. The exception is rejected.

CONCLUSIONS OF LAW

1. The Intervenor excepts to conclusion of law number 38. The Hearing

Officer's conclusion was not erroneous, and is supported by the record. The

Hearing Officer states the deficiencies in the Board's review based upon the

record. Intervenor's exception to this conclusion of law is based its own

version of facts and rejects Ms. Jackson's testimony at the hearing. The Board

cannot substitute its judgment for that of the hearing officer, unless it is not

supported by competent, substantial evidence. The record supports the hearing

officer's conclusion based on the facts. Intervenor's exception is rejected.

2. Intervenor excepts to conclusion of law no. 39. After a review of the

record, it is determined that the conclusion is not erroneous and is supported

by the record in this case. The Hearing Officer made a finding as to the good

faith effort special conditions and the statute based on competent, substantial

evidence; and it was permissible to conclude that under the facts of this case,

the Board's decision was arbitrary. The exception is rejected.

3. Greenhut excepts to conclusion of law no. 40. Greenhut's exception

incorrectly asserts factual findings for those of the Hearing Officer which are

supported by competent, substantial evidence. The Hearing Officer's finding of

fact numbers 23 and 24 establish the reasons for the committee's actions and

explains the inferences drawn by the Hearing Officer. The record supports the

hearing officer's conclusion. The exception is rejected.

4. Intervenor excepts to conclusion of law-numbers 42 and 43 as erroneous

because the conclusions rely upon an erroneous and unsupported opinion of one

staff person of the Board. After a review of the record, it is determined that

conclusions of law numbers 42 and 43 are Supported by the record of this case

and based on competent, substantial evidence. Greenhut never disputed Ms.

Jackson's testimony regarding organization or presented a proposed fact that her

testimony was inaccurate. Ms. Jackson testified that while all the

organizations that Greenhut contacted provided some assistance, only the SBDC

located at UWF provided the degree of assistance that the specifications

required. It was Permissible for the Hearing Officer to base her findings and

conclusions on Ms. Jackson's testimony and other evidence presented in this

case. Accordingly, Intervenor's exceptions are rejected.

5. Intervenor excepts to conclusion of law number 44 as not based upon

competent, substantial evidence. However, the Hearing Officer's conclusion is

properly supported by the record. The record does not establish that Greenhut

did not have the second list. Mr. Hewes's testimony regarding the second list

was not objected to or refuted by Greenhut. Therefore, it was permissible for

the Hearing Officer to reach conclusion number 44. Intervenor's exception is

rejected.

6. Intervenor excepts to conclusion of law numbers 45 and 46 as not based

upon competent, substantial evidence. The record does not reveal that Greenhut

did not have the second list. The record, instead, shows that Opus thought it

had contacted minority organizations if it contacted the minority businesses on

the university listing. Opus was unaware that another list of community

organizations was available and provided to other bidders. That list was

important to the issue, since Opus was rejected by the Board for failure to

contact any minority organizations. Accordingly, it was permissible for the

Hearing Officer to conclude that the bidders were not treated equally or fairly,

and that the Board decision was, in this particular instance arbitrary.

Therefore, Intervenor's exception is rejected.

This FINAL ORDER constitutes final agency action and an Order under Chapter

120 of the Florida Statutes. The parties may obtain judicial review of this

Final Order in the District Court of Appeal, in accordance with Section 120.68,

F.S., and the Florida Rules of Appellate Procedure. Commencement of an appeal

may be made by filing a Notice of Appeal with the Office of the Corporate

Secretary of the Board of Regents and a copy of that Notice, together with the

filing fee prescribed by law, with the Clerk of the Court, within 30 days after

this order is dated as being filed in the Office of the Corporate Secretary.

This FINAL ORDER entered this day of September, 1993.

BY: _______________________________

Charles B. Reed

Chancellor

State University System of Florida

This FINAL ORDER was filed in the Office of Corporate Secretary on this

21st day of September, 1993.

BY: _______________________________

Mary-Anne Bestbebreurtje

Corporate Secretary