97-003309BID Beach Construction Company, Inc. vs. Department Of Corrections Status: Closed Recommended Order on Monday, October 13, 1997.

Summary: Failure of lowest bidder to attend pre-BID conference was a minor irregularity which could be waived by Department. Lowest bidder was responsive.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BEACH CONSTRUCTION COMPANY, INC., )

)

Petitioner, )

)

vs. ) Case No. 97-3309BID

)

DEPARTMENT OF CORRECTIONS, )

)

Respondent. )

)

and )

)

SHAW CONSTRUCTION AND )

MANAGEMENT SERVICES, INC. )

)

Intervenor. )

____________________________________)

RECOMMENDED ORDER

Upon due notice, William R. Cave, Administrative Law Judge,

Division of Administrative Hearings, held a formal hearing in

this matter on August 13, 1997, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Donna P. Beach

Qualified Representative

Beach Construction Company, Inc.

4554 Southwest 41st Boulevard

Gainesville, Florida 32608

For Respondent: Daniel Te Young, Esquire

Department of Corrections

2601 Blair Stone Road

Tallahassee, Florida 32399-2500

For Intervenor: Terry L. Shaw

Shaw Construction and Management

Services, Inc.

386 Pine Tree Road

Lake Mary, Florida 32746

STATEMENT OF THE ISSUE

Is the Department of Corrections' proposed award of Project

SK-25-WW to Shaw Construction and Management Services, Inc.,

contrary to the Department's governing statutes, rules or

policies, or the bid or proposal specifications?

PRELIMINARY MATTERS

On April 4, 1997, the Department of Corrections (Department)

advertised Project SK-25-WW (Project) for bid in the Florida

Administrative Weekly. Shaw Construction and Management

Services, Inc. (Shaw) submitted the lowest bid of $279,000.

Petitioner, Beach Construction Company, Inc. (Beach) submitted

the second lowest bid of $297,000. The Department notified the

bidders of its intent to award the contract to Shaw.

Beach timely filed a formal written protest on June 10,

1997, which was referred to the Division of Administrative

Hearings (Division) on July 18, 1997, for the assignment of an

Administrative Law Judge and the conduct of a hearing .

At the hearing, Beach made an opening statement but did not

present any testimony. Beach's Exhibits One and Two were

received as evidence. The Department presented the testimony of

Clayton Campbell and Terry Shaw. Department's Exhibits One

through Four were received as evidence. By agreement of the

parties, the transcript of Timothy A. Hochuli's deposition taken

on August 19, 1997, was received as evidence in lieu of his live

testimony at the hearing. Joint Exhibit One was received as

evidence.

A transcript of this proceeding was filed with the Division

on August 18, 1997. A transcript of Timothy A. Hochuli's

deposition was filed with the Division on September 5, 1997. The

parties' request that the time to file their proposed findings of

fact and conclusions of law be extended until September 19, 1997,

was granted. The parties timely filed their proposed findings of

fact and conclusions of law under the extended time frame.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence

adduced at the hearing, the following relevant findings of fact

are made:

1. In April 1997, the Department advertised for bids for

construction of wastewater treatment plant upgrades at Polk

Correctional Institution (Project).

2. The engineering firm of Hartman and Associates, Inc.

(Hartman) was the Department's professional consultant on the

Project and was responsible for designing, permitting, bidding,

and construction supervision. Hartman's project manager was

Timothy Hochuli.

3. In April 1997, after the Project Manual was completed

and ready for distribution, Hochuli furnished Clayton Campbell,

the Department's project manager, a copy of the advertisement for

publication in the Florida Administrative Weekly, the official

publication for projects that are bid by the Department. The

copy of the advertisement furnished to Campbell indicated that a

pre-bid conference was mandatory.

4. After some discussion between Hochuli and Campbell, it

was decided that the advertisement would not contain the

requirement for a mandatory pre-bid conference but only that

there would be a pre-bid conference. Thereafter, the

advertisement was placed in the Florida Administrative Weekly

without the mandatory pre-bid conference requirement.

5. Hochuli did not delete the requirement for a mandatory

pre-bid conference in the Project Manual, notwithstanding the

advertisement in the Florida Administrative Weekly to the

contrary. However, Campbell assumed that the requirement for a

mandatory pre-bid conference had been removed from the Project

Manual, and acted on that assumption until advised otherwise by

Beach after the bid opening.

6. The Advertisement for Bids that was placed in the

Florida Administrative Weekly included the following relevant

paragraphs:

PROPOSALS: Bids must be submitted in full

accordance with the requirements of the

Drawings, Specifications, Bidding Conditions

and Contractual Conditions, which may be

examined and obtained from the:

ARCHITECT/ENGINEER: HARTMAN & ASSOCIATES,

INC.,. . . .

* * *

PRE-BID CONFERENCE: A pre-bid conference

will be held on April 15, 1997 at the

Administrative Building Conference Room at

the Polk Correctional Institution.

7. The Bidding Conditions were included in the Project

Manual which was issued by Hartman. Section A of the Project

Manual entitled "Advertisement for Bid" includes the following

paragraph:

PRE-BID CONFERENCE: A mandatory pre-bid

conference will be held on April 15, 1997,

10:30 a.m. at the Administrative Building

Conference Room at the Polk Correctional

Institution.

8. There was no reference to a pre-bid conference in

Section B of the Project Manual entitled "Instruction to Bidders"

or any other part of the Project Manual.

9. Shaw learned of the Project through the April 10, 1997,

Dodge Reports, a trade journal that publishes construction

projects, which did not list the pre-bid conference as being

mandatory. However, at least one other trade journal listed the

pre-bid conference as being mandatory.

10. The pre-bid conference was held as scheduled on April

15, 1997. All bidders, with the exception of Shaw, were

represented at the pre-bid conference.

11. At the pre-bid conference, Campbell and Hochuli gave an

overview of the project, discussed concerns specific to the

project and prequalification requirements, and answered

questions. Certain questions were answered in an addendum to the

Project Manual. A site visit, a requirement specified in the

Project Manual, was also conducted by Campbell and Hochuli.

Although Shaw did not attend this site visit, Shaw did make a

site visit prior to submitting its proposal in accordance with

paragraph B-9 of the Project Manual.

12 Shaw ordered the Project Manual from Hartman on April

21, 1997. After receiving the Project Manual, Shaw noticed that

the pre-bid conference was mandatory. Shaw then contacted

Hartman to determine if Shaw could bid on the Project since it

had not attended the pre-bid conference on April 15, 1997. Shaw

was advised by Hartman that it could submit a bid. Shaw did not

request, nor did the Department or Hartman make an addendum to

the Project Manual concerning the mandatory pre-bid conference.

13. Beach, Shaw, and four others submitted bids on the

Project which were opened at 11:30 a.m. on April 25, 1997. Shaw

was the lowest bidder at $279,000, with Beach being the second

lowest bidder at $297,000.

14. Hochuli reviewed Shaw's bid; and based on Shaw's

familiarity with similar projects of similar size, work

references, and financial information, determined that Shaw could

do the work required by the Project Manual, and thus recommended

that the Department award the Project to Shaw.

15. On June 6, 1997, the Department issued notice that it

intended to award the contract to Shaw as the lowest responsive

bidder.

16. Beach, the apparent second lowest responsive bidder,

timely submitted a notice of protest and a formal written

protest, contending that Shaw was not a responsive bidder, in

that Shaw had not attended the pre-bid conference.

17. There is no evidence that Shaw's failure to attend the

pre-bid conference affected the price of the bid, or gave Shaw an

advantage or benefit not enjoyed by other bidders, or adversely

impacted the interest of the Department.

CONCLUSIONS OF LAW

18. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding pursuant to Section 120.57(1) and (3), Florida

Statutes.

19. Section 1209.57(3)(f), Florida Statutes, provides in

pertinent part as follows:

(f). . . Unless otherwise provided by

statute, the burden of proof shall rest with

the party protesting the proposed agency

action. In a competitive-procurement

protest, other than a rejection of all bids,

the administrative law judge shall conduct a

de novo proceeding to determine whether the

agency's proposed action is contrary to the

agency's governing statutes, the agency's

rules or policies, or the bid or proposal

specifications. The standard of proof for

such proceedings shall be whether the

proposed agency action was clearly erroneous,

contrary to competition, arbitrary, or

capricious. . . . (emphasis furnished)

There is no statute providing to the contrary; therefore, the

Petitioner has the burden of proof in this matter.

20. Clearly, the Project Manual provided for a mandatory

pre-bid conference. Equally as clear is that the Department's

intent was to delete this requirement as is shown by the

advertisement for bid placed in the Florida Administrative Weekly

and the discussion between Campbell and Hochuli. However,

assuming arguendo that attendance at the pre-bid conference was a

prerequisite for bidding on the Project, the Department may waive

that requirement if it is determined to be a minor irregularity.

See Tropabest Foods, Inc. vs. Department of General Services ,

493 So. 2d 50 (1st DCA Fla. 1986); Robinson Electric Company

Inc. vs. Dade County , 417 So. 2d 1032(3rd DCA Fla. 1982); Harry

Pepper and Associates vs. City of Cape Coral , 353 So. 2d 1190

(2nd DCA Fla. 1978). A minor irregularity is a variation from

the bid specifications which does not affect the price of the

bid, or give the bidder an advantage or benefit not enjoyed by

other bidders or does not adversely impact the interests of the

agency. Tropabest , 493 So. 2d at 52; Robinson , 417 So. 2d at

1034; Pepper , 352 So. 2d at 1193. From the record, it is clear

that Shaw's failure to attend the pre-bid conference was a minor

irregularity which the Department chose to waive. Petitioner has

failed to meet its burden of proof.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is recommended that the protest of Petitioner Beach

Construction Company, Inc., be dismissed.

DONE AND ENTERED this 13th day of October, 1997, in

Tallahassee, Leon County, Florida.

_

WILLIAM R. CAVE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 13th day of October, 1997.

COPIES FURNISHED:

Harry K. Singletary, Jr.

Secretary

2601 Blair Stone Road

Tallahassee, Florida 3399-2500

Louis A. Vargas

General Counsel

2601 Blair Stone Road

Tallahassee, Florida 32399-2500

Donna P. Beach

Qualified Representative

Beach Construction Company, Inc.

4554 Southwest 41st Boulevard

Gainesville, Florida 32608

Daniel Te Young, Esquire

Department of Corrections

2601 Blair Stone Road

Tallahassee, Florida 32399-2500

Terry L. Shaw

Shaw Construction and Management

Services, Inc.

386 Pine Tree Road

Lake Mary, Florida 32746

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15

days from the date of this Recommended Order. Any exceptions to

this Recommended Order should be filed with the agency that will

issue the Final Order in this case.