95-002944 Tony Depaul And Sons, Inc. vs. Department Of Transportation Status: Closed Recommended Order on Monday, October 16, 1995.

Summary: Failure to timely file audited annual financial statement is valid basis for denial of application for contractor qualification.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TONY DEPAUL & SONS, INC. )

)

Petitioner, )

)

vs. ) CASE NO. 95-2944

)

DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Following notice to all parties, Don W. Davis, a Hearing Officer for the

Division of Administrative Hearings, held a final hearing in the above-styled

case on August 31, 1995, in Tallahassee, Florida.

APPEARANCES

For Petitioner: William J. Cummings

Qualified Representative

Tony DePaul & Sons, Inc.

Post Office Box 1650

Blue Bell, Pennsylvania 19422

For Respondent: Mary Dorman, Esquire

Department of Transportation

605 Suwannee St., Mail Station 58

Tallahassee, Florida 32399-0450

STATEMENT OF THE ISSUE

The issue to be decided in this case is whether Petitioner timely submitted

an application, with all required accompanying documents, for prequalification

as a contractor with Respondent.

PRELIMINARY STATEMENT

By letter dated May 10, 1995, Respondent informed Petitioner of intent to

deny Respondent's application for qualification as a contractor on Respondent

projects on the basis that Petitioner's application was not accompanied by

audited financial statements. In the letter, Petitioner was apprised of

recourse to formal administrative proceedings.

By letter dated May 16, 1995, Petitioner responded and requested

administrative proceedings with regard to Respondent's proposed denial.

The matter was transferred to the Division of Administrative Hearings for

formal proceedings on June 9, 1995.

By order dated July 10, 1995, this matter was set for final hearing on

August 31, 1995. Pursuant to request of the parties, Petitioner was permitted

to appear and present evidence via telephone.

At the final hearing, Petitioner presented testimony of one witness.

Respondent presented testimony of three witnesses and one rebuttal exhibit. By

prehearing stipulation, the parties submitted a joint exhibit consisting of

Petitioner's exhibit A and four exhibits on behalf of Respondent.

A transcript of the final hearing was filed on September 7, 1995. The

parties requested and were granted leave to file proposed findings of fact

twenty (20) days after the filing of the transcript. Respondent's proposed

findings of file are addressed in the appendix attached to this recommended

order. No proposed findings were submitted by Petitioner and none had been

received at the time of preparation of this recommended order.

FINDINGS OF FACT

Stipulated Facts

The parties stipulated at the final hearing to factual findings set forth

in paragraphs 1-3, below.

1. The Department received the Application for Qualification on April 27,

1995.

2. An audited financial statement of Tony DePaul & Sons, Inc., was

completed on December 31, 1994.

3. The deadline for the Department to have received the annual audited

financial statement of Tony DePaul & Sons was May 1, 1995.

Other Facts

4. Petitioner in this proceeding is Tony DePaul & Sons, Inc.

5. Respondent is the Florida Department of Transportation.

6. Respondent's Contracts Administration Office administers a contractor

qualification program in which the Department qualifies contractors to

subsequently bid on Respondent projects which exceed the sum of two hundred and

fifty thousand dollars.

7. Petitioner's application was received on April 27, 1995, minus

Petitioner's annual audited financial statement which had been completed on

December 31, 1994.

8. The deadline for receipt of the application and Petitioner's annual

audited financial statement was May 1, 1995.

9. Respondent's representative contacted Petitioner on May 9, 1995, as a

courtesy to inform Petitioner that the annual audited financial statement had

not been received. Thereafter Respondent received the annual audited financial

statement on May 11, 1995.

10. Respondent's interpretation of law applicable to the subject

application dictates that an application, such as Petitioner's, must be denied

where the application and annual audited financial statement are submitted more

than four months after the ending date of the annual audited financial

statement, unless the applicant submits an additional interim audited financial

statement.

11. Petitioner made no inquiry of Respondent's offices to ascertain whether

Respondent had timely received Petitioner's application and audited financial

statement. Notably, Respondent's Contracts Administration Office has not lost

or misplaced a document since 1982.

12. The total elapsed time between receipt by Respondent's offices of

Petitioner's Application for Contractor Qualification on April 27, 1995, and

Respondent's issuance of a Notice of Intent to deny Petitioner's application is

thirteen (13) days. Respondent is required to process applications within

thirty (30) days.

CONCLUSIONS OF LAW

13. The Division of Administrative Hearings has jurisdiction over this

matter. Section 120.57(1), Florida Statutes.

14. Petitioner bears the burden in this proceeding of proving entitlement

to the requested relief by a preponderance of the evidence. Fla. DOT v. J.W.C.

Co., Inc., 396 So. 2d 778 (Fla. 1st DCA, 1981)

15. As required by Section 337.14(1), Florida Statutes, each "application

for certification" must be accompanied by "the latest annual financial statement

. . . completed within the last 12 months." The statute also requires

submission of an interim financial statement in instances where "the annual

financial statement shows the financial condition of the applicant more than 4

months prior to the date on which the application is received by the department

. . ."

16. Section 337.14(1), Florida Statutes, also requires that Respondent act

upon an application "within 30 days after it is presented." In the case at bar,

Respondent acted upon the application in timely fashion, 13 days, and cannot be

held accountable for Petitioner's failure to file the application and required

financial audit in a timely fashion.

17. Although it is conceiveable that Petitioner could have timely filed

the required financial audit immediately following the receipt of the

application by Respondent on April 27, 1995, Petitioner made no inquiry of

Respondent's offices. Petitioner's failure to insure that its application was

properly accompanied by the annual financial audit is not an oversight that lies

within the realm of Respondent's responsibility.

RECOMMENDATION

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

recommended that a Final Order be entered denying Petitioner's application.

DONE and ENTERED in Tallahassee, Florida, this 16th day of October, 1995.

___________________________________

DON W. DAVIS, 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 16th day of October, 1995.

APPENDIX

In accordance with provisions of Section 120.59, Florida Statutes, the

following rulings are made on the proposed findings of fact submitted on behalf

of the parties.

Petitioner's Proposed Findings

None submitted.

Respondent's Proposed Findings

1.-11., Accepted.

COPIES FURNISHED:

William J. Cummings

Tony DePaul & Sons, Inc.

P. O. Box 1650

Blue Bell, PA 19422

Peter DePaul, President

Tony DePaul & Sons, Inc.

P. O. Box 1650

Blue Bell, PA 19422

Michael J. Lerner, C.P.A.

Tony DePaul & Sons, Inc.

P. O. Box 1650

Blue Bell, PA 19422-0465

Mary Dorman, Esq.

Dept. of Transportation

605 Suwannee St., MS-58

Tallahassee, FL 32399-0450

Ben Watts, Secretary

Dept. of Transportation

605 Suwannee Street

Tallahassee, FL 32399-0450

Thornton J. Williams

General Counsel

Dept. of Transportation

562 Haydon Burns Building

Tallahassee, FL 32399-0450

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.