98-000749BID Hubbard Construction Company vs. Department Of Transportation Status: Closed Recommended Order on Friday, May 1, 1998.

Summary: Bidder used DBE not approved for non-federally funded project and failed to meet goal. DOT was not estopped or otherwise responsible. Bidder attempt to change DBE was after deadline for DBE utilization forms.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HUBBARD CONSTRUCTION COMPANY, )

)

Petitioner, )

)

vs. ) Case No. 98-0749BID

)

DEPARTMENT OF TRANSPORTATION, )

)

Respondent, )

)

and )

)

SMITH & COMPANY, INC., )

)

Intervenor. )

_________________________________)

RECOMMENDED ORDER

On March 12 and 13, 1998, a formal administrative hearing was

held in this case in Tallahassee, Florida, before J. Lawrence

Johnston, Administrative Law Judge, Division of Administrative

Hearings.

APPEARANCES

For Petitioner: F. Alan Cummings

Thomas A. Valdez

Cummings & Thomas, P.A.

1004 DeSoto Park Drive

Tallahassee, Florida 32301

For Respondent: Mary Sieger Miller

Former Assistant General Counsel

Department of Transportation

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399-0458

For Intervenor: Donna H. Stinson

Broad & Cassel

215 South Monroe Street, Suite 400

Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

The issue in this case is whether the Respondent, the Department

of Transportation (DOT), should award State Project No. 97160-3320 to

Intervenor, Smith & Company (Smith), notwithstanding the bid protest

filed by the Petitioner, Hubbard Construction Company (Hubbard),

alleging that its bid was responsive and lower than Smith's bid.

PRELIMINARY STATEMENT

The Petitioner, Hubbard, and several others, including Intervenor

Smith, bid on State Project No. 97160-3320 in Polk County (the

project). Upon the opening of the bids on or about October 29, 1997,

Petitioner was the apparent low bidder at $8,650,169.84; Cone & Graham

was the apparent second low bidder at $8,863,088.21; and Intervenor

Smith was the apparent third low bidder at $8,944,382.70.

The bids of Hubbard and Cone & Graham were reviewed by the DOT's

Good Faith Efforts Committee of the DOT's Minority Programs Office for

compliance with the project's Disadvantaged Business Enterprise (DBE)

goals and were found to be non-responsive. Cone & Graham's bid was

found to be non-responsive because no DBE utilization forms had been

submitted. Hubbard's bid was found to be non-responsive because its

DBE utilization forms relied on Suncoast Fabrics, which was not an

approved DBE for state-funded projects; without Suncoast Fabric's

participation, Hubbard's bid did not meet the project's DBE goals.

Neither Cone & Graham nor Hubbard submitted a package to demonstrate

good faith efforts to meet the DBE goals.

The findings and recommendations of the Good Faith Efforts

Committee were submitted to the DOT's Technical Review Committee.

The Technical Review Committee concurred with the Good Faith

Efforts Committee that the apparent low bid and second low bid were

non-responsive and that the project should be awarded to Smith.

The findings and recommendations of the Technical Review

Committee were submitted to the DOT's Contract Awards Committee.

The Contract Awards Committee concurred with the Good Faith Efforts

Committee and the Technical Review Committee that the apparent low

bid and the apparent second low bid were nonresponsive, and awarded

the contract to Smith.

DOT issued its Notice of Intent to Award the contract to

Smith, and Hubbard timely filed its bid protest. No other bidder

protested. Smith petitioned to intervene.

On or about February 12, 1998, the DOT referred Hubbard's bid

protest to the Division of Administrative Hearings. Final hearing

was scheduled and held on March 12 and 13, 1998. Hubbard called

six witnesses and had Petitioner's Exhibits 1 through 15 admitted

in evidence. The DOT called one witness and had Department

Exhibits 1, 2, 3, 9, 11, 12, 17 and 18 admitted in evidence. Smith

called one witness.

DOT ordered the preparation of a transcript of the final

hearing, and the parties filed proposed recommended orders.

(Hubbard's Motion to Supplement its proposed recommended order is

granted over the written objections of the other parties.)

FINDINGS OF FACT

1. State Project No. 97160-3320 (the project) is for work on the

Polk County Parkway in Polk County. This project is funded entirely

with state funds. It had a Disadvantaged Business Enterprise (DBE)

goal of twelve percent, consisting of four percent black, and eight

percent non-minority female.

2. The Florida Department of Transportation (DOT) manages two

separate DBE programs--a federal DBE program for federally funded

projects, and a state DBE program for state-funded projects. The

state program is based upon a disparity study conducted by MGT of

America for the DOT in 1993. This study was conducted as a result of

the case of City of Richmond v. J. A. Croson Co. , 109 S.Ct. 706

(1989), which determined that a preferential contract system which was

not based on actual discrimination was unconstitutional.

3. The MGT disparity study found that there was evidence of

disparate treatment by DOT in Florida, and in a very small number of

counties outside of Florida. As a result, the state DBE program only

certifies DBEs with home offices in Florida or the other counties

identified in the disparity study.

4. The DOT publishes a DBE directory for each bidding cycle.

The DBE Directory includes DBEs certified or in the process of

renewing expired certifications at the time the directory is

published. The DBE directory includes DBEs for both the federal and

state DBE programs but clearly indicates which DBEs are approved only

for projects with at least some federal funding. Under DOT's policies

and practices, a bidder can use any approved DBE listed in the

directory even if the DBE's certification expires between publication

and the bid letting.

5. The deadline for submission of bids for the project was

October 29, 1997. Hubbard's initial bid included a DBE Utilization

Summary form indicating that it would achieve the DBE goal established

for the project.

6. The DBE Utilization Summary form gave Hubbard notice that

another DBE Utilization Summary form listing the DBEs Hubbard would

use, along with the dollar amounts of the subcontracts for each DBE

listed, together with completed DBE Utilization forms for each DBE,

had to be received by the DOT no later than 5 p.m. on the third

business day after the bid letting. The DBE Utilization Summary form

also gave notice that, otherwise: "Bids may be declared non-responsive

. . . ."

7. On November 3, 1997, Hubbard submitted a completed DBE

Utilization Summary form, together with completed DBE Utilization

forms. These forms stated that Hubbard stated would be using Suncoast

Fabrics for erosion control work to meet $160,000 worth of the non-

minority female goal for the project. Without the subcontract with

Suncoast Fabrics, Hubbard would fall $160,000 short of meeting the

non-minority female goal.

8. In fact, Suncoast is not certified as a DBE for projects

funded entirely by the State (i.e., without any federal funding). As

a result, Hubbard's bid was $160,000 short of meeting the non-minority

female goal for the project.

9. After November 3, 1997, Hubbard discovered its error in

relying on Suncoast Fabrics as a DBE for the project and on

November 5, 1997, submitted another DBE Utilization Summary form

and DBE Utilization form stating that, instead of paying Suncoast

$160,000 for erosion control work, it would pay Margie Woods

Trucking an additional $160,000.

10. Hubbard's bid was reviewed by the DOT's Good Faith

Efforts Committee of the DOT's Minority Programs Office for

compliance with the project's DBE goals and was found to be non-

responsive because Hubbard's DBE utilization forms relied on

Suncoast Fabrics, which was not an approved DBE for state-funded

projects and because, without Suncoast Fabric's participation,

Hubbard's bid did not meet the project's DBE goals.

11. Hubbard did not submit a package to demonstrate good

faith efforts to meet the DBE goals (because Hubbard thought its

bid met the DBE goals). The Good Faith Efforts Committee found

that Hubbard's bid did not demonstrate good faith efforts to meet

the DBE goals, a finding which Hubbard does not dispute.

12. The Good Faith Efforts Committee did not consider

Hubbard's November 5, 1997, submission attempting to substitute

Suncoast Fabric's participation with an increase in Margie Woods

Trucking's participation because it was submitted after the

deadline for submitting DBE utilization forms.

13. The findings and recommendations of the Good Faith

Efforts Committee were submitted to the DOT's Technical Review

Committee. The Technical Review Committee concurred with the Good

Faith Efforts Committee that the apparent low bid and second low

bid were non-responsive and that the project should be awarded to

Smith.

14. The findings and recommendations of the Technical Review

Committee were submitted to the DOT's Contract Awards Committee. The

Contract Awards Committee concurred with the Good Faith Efforts

Committee and the Technical Review Committee that the apparent low bid

and the apparent second low bid were nonresponsive, and awarded the

contract to Smith.

15. None of the DOT committees reviewing Hubbard's bid in the

process of deciding to award the contract to Smith gave specific

consideration to the question whether Hubbard's failure to timely

submit DBE utiJization forms meeting the project's DBE goals should be

waived as being a minor irregularity.

16. The Department's policy is to strictly enforce the three-day

period for submission of completed DBE utilization forms and to

consider failure to submit DBE utilization forms meeting a project's

DBE goals to be a material error mandating rejection of a bid as non-

responsive. From January 1995 through December 1997, the Department

rejected 18 out of 254 problem bids because the bids failed to meet

DBE goals.

17. The DOT rejected the bid of Edward M. Chadbourne and

Associates in a prior letting on facts very similar to those in this

case. Chadbourne proposed Suncoast Sod Farms, Inc., a DBE firm based

in Alabama, for a project wholly funded by the state. As reflected in

the DBE Directory for that letting, Suncoast Sod was not eligible for

non-federally funded projects.

18. In two prior state-funded projects for the Polk County

Parkway, Suncoast Fabrics had been used by a contractor in its DBE

submissions. The Department allowed the use of Suncoast Fabrics to

count towards the contractor's DBE percentage because the DBE

Directory for those projects erroneously failed to indicate that

Suncoast Fabrics was certified as a DBE only for federally-funded

projects.

19. Similarly, the DOT awarded a contract to Murphree Bridge

Corporation in a prior letting although Murphree did not meet the

three percent DBE goal for that project. In that case, DOT

advertisements prior to the letting erroneously stated that the goal

was two percent, and Murphree met the advertised goal but not the

actual 3 percent goal.

20. In the two prior instances involving Suncoast Fabrics and

the prior instance involving Murphree Bridge, the DOT declined to

penalize the contractors for DOT's errors. However, there was no

change in DOT's policy regarding the three-day period for submission

of completed DBE utilization forms that meet a project's DBE goals.

In addition, in those instances, DOT was unable to count the DBE

utilization for purposes of its affirmative action program, for which

it must report to the legislature.

21. Suncoast Fabrics apparently did not realize it was not

approved for state-funded contracts, and it misled Hubbard when

Hubbard inquired as to Suncoast's DBE eligibility. But regardless

whether Suncoast had an excuse for its erroneous belief, it was

Hubbard's responsibility to use the DBE Directory to verify whether a

DBE is authorized for use on a particular project, and the applicable

DBE Directory clearly noted that Suncoast Fabrics was not approved for

this project. In fact, Suncoast Fabrics was appropriately identified

as not qualifying for state-funded projects in each DBE Directory

since March 1997. DOT made no statement, representation or indication

of any kind to Hubbard that would have misled Hubbard to think that

Suncoast Fabrics was qualified as a DBE for State Project No. 97160-

3320. In this regard, Hubbard's situation is significantly different

from the two prior instances involving Suncoast Fabrics, the prior

instance involving Murphree Bridge.

22. The Department did not intend for bidders to use the three-

day period for submission of completed DBE Utilization forms to shop

DBEs' prices, attempt to drive DBEs' prices down, or continue to

solicit quotes from DBEs. The Department has no statute, rule,

procedure, or policy permitting substitution of DBEs more than three

days after a bid letting and before work begins. The Department does

not permit substituting DBEs after an award is posted unless the DBE

fails to perform, and then only with the express prior approval of the

Department.

23. Allowing a bidder the ability to shop DBEs' prices, attempt

to drive DBEs' prices down, or continue to solicit quotes from DBEs

after the three-day period could give the bidder a competitive

advantage over bidders who do not.

24. The amount of the bid submitted by a contractor can be

affected by the bids it received from DBEs. The bid submitted may be

based upon quotes received from particular DBEs. If one contractor

were allowed to use an unqualified DBE whose price was low, and the

other contractors did not rely on such quote, knowing that the DBE was

unqualified, the first contractor could enjoy a competitive advantage.

Although Hubbard asserted that it did not decide which DBEs to use

until after its bid was submitted, the possibility of an advantage

exists.

25. Hubbard also contends that its failure to submit DBE

Utilization forms meeting the DBE goal for the project is similar to

Smith's alleged error in submitting a single DBE Utilization Summary

form for both of the split goals (black and non-minority female),

contrary to the instructions for the form. Suffice it to say that

submitting the information on a single form is different from

Hubbard's error. It is clear from Smith's submission that Smith's bid

met the project's DBE goals; it was clear from Hubbard's bid that

Hubbard's did not.

26. DOT's decision to reject Hubbard's bid for failure to comply

with the DBE requirements was not contrary to statute, rule, policy,

practice or the bid specifications. Hubbard did not show that the

Department's action was clearly erroneous, contrary to competition,

arbitrary, or capricious.

CONCLUSIONS OF LAW

27. Section 120.57(3)(f), Florida Statutes (1997), provides in

pertinent part:

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.

28. Section 339.0805(1)(b), Florida Statutes (1997), provides in

pertinent part:

(b) Upon a determination by the department of

past and continuing discrimination in

nonfederally funded projects on the basis of

race, color, creed, national origin, or sex, the

department may implement a program tailored to

address specific findings of disparity. The

program may include the establishment of annual

goals for expending a percentage of state-

administered highway funds with small business

concerns. . . . The head of the department may

elect to set goals only when significant

disparity is documented. (Emphasis supplied.)

29. Florida Administrative Code Rule 14-78.004 provides in

pertinent part:

(1) Purpose. It is the purpose of the Non-

Federally Funded State DBE Program, hereinafter

referred to as "State DBE Program," to take

specific affirmative actions to eliminate

discrimination and the effects of past

discrimination . . . .

* * *

(4)(b) Eligible DBE's. Only DBE's certified

under Rule 14-78.005 and 14-78.007, who meet all

of the following criteria shall be eligible to

participate in the State DBE Program. These

DBE's are presumed to have experienced past

discrimination by the Department, but the

presumption is rebuttable.

1. Those DBE's with their primary

place of business in the State of

Florida or other counties where the

disparity study has shown

discrimination by the Department . . .

. (emphasis added)

30. Florida Administrative Code Rule 14-78.003(2)(b)3 provides

in pertinent part:

For all contracts for which DBE contract goals

have been established, each bidder shall meet or

exceed or demonstrate that it could not meet,

despite its good faith efforts, the contract

goals set by the Department. The DBE

participation information shall be submitted as

outlined in 14-78.003(2) (b)3.a. and b. below.

Award of the contract shall be conditioned upon

such submission of the DBE participation

information and upon satisfaction of the contract

goals or, if the goals are not met, upon

demonstrating that good faith efforts were made

to meet the goals. Failure to satisfy the

information requirements shall result in a

contractor's bid being deemed nonresponsive and

the bid being rejected.

a. The contractor's bid submission shall include

information, pursuant to 49 C.F.R. Subtitle A,

Subpart C, 23.45(h)(1)(i), submitted on a

completed Disadvantaged Business Enterprise (DBE)

Utilization Form, Form 275-020-004, Rev. 10/95

and Disadvantaged Business Enterprise (DBE)

Utilization Summary Form, Form 275-020-003, Rev.

10/95.

b. In lieu of a completed Disadvantaged

Business Enterprise (DBE) Utilization Summary

Form, Department of Transportation Form 275 020-

003, Rev. 10/95, and a Disadvantaged Business

Enterprise (DBE) Utilization Form, Department of

Transportation Form 275-020-004, Rev. 10/95, the

contractor will submit a Disadvantaged Business

Enterprise (DBE) Utilization Summary Form which

indicates that either the contractor will achieve

the DBE goal established for the project for

which the bid has been submitted, or that the

contractor has submitted sufficient information

to demonstrate that the contractor made good

faith efforts to meet the DBE goal as part of the

bid submission. If the contractor has submitted

a Disadvantaged Business Enterprise (DBE)

Utilization Summary Form on which the contractor

has indicated that the DBE goal will be achieved,

the contractor will provide to the Minority

Programs Office by 5:00 P.M. on the third

business day following the bid letting day . . .

. (emphasis added)

This rule was amended to add option b. Before the amendment, all

DBE utilization forms had to be included in the initial bid

submission

31. Hubbard's primary contention in this case is that its

failure to submit DBE utilization forms meeting the project's DBE

goals within the three-day period specified in Rule 14-

78.003(2)(b)3.b was a minor irregularity that DOT should waive.

"[A]lthough a bid containing a material variance is unacceptable,

not every deviation from the invitation to bid is material. It is

only material if it gives the bidder a substantial advantage over

the other bidders and thereby restricts or stifles competition.

[T]he purpose of competitive bidding is to secure the lowest

possible responsible offer and minor irregularities can be waived

in effectuating this purpose." Tropabest Foods, Inc. v. Department

of General Services , 493 So. 2d 50 (Fla. 1st DCA 1986).

32. The Department has consistently interpreted Florida

Administrative Code Rule 14-78.003(2)(b)3 to mean what it says:

"Failure to satisfy the information requirements shall result in a

contractor's bid being deemed nonresponsive and the bid being

rejected." Although in this case the DBE information was not

required until three days after the initial bid submission, the

principles are the same.

33. In the Final Order, Murphy Construction Co. v. Department

of Transportation , Case No. 91-0848BID, entered May 10, 1991,

failure to provide a description of the work to be done on the DBE

form was found to be a material error because" the irregularity was

a violation of DOT rules which provide on their face that a

violation will result in a bid being nonresponsive, and the DOT

interprets the rule to mean what it says." This reasoning is

equally applicable to the matter at issue in this case. Similarly,

in the Recommended Order in Martin Eby Construction Company, Inc.

v. State of Florida Department of Transportation , Case No. 93-

5703BID, entered December 28, 1993, a bidder relied on the

assertion of a potential DBE that it would be approved for the

letting, but the DBE was not listed in the applicable DBE

directory. The matter was considered to be a material error:

To allow Petitioner to substitute certified

DBEs for an uncertified DBE in its bid after

the bid letting would give Petitioner a

substantial advantage over the other bidders,

or an advantage or benefit not enjoyed by the

other bidders, or both. Hence, the

irregularity in Petitioner's bid is material

and not waiveable; Petitioner cannot be

permitted to substitute certified DBEs for

Gearing, an uncertified DBE, after bid letting.

34. Courts have also recognized that the failure to list

subcontractors when required is a material deviation, in that such

failure provides the opportunity for bid shopping. In E.M.

Watkins & Co., v. Board of Regents , 414 So. 2d 583 (Fla. 1st DCA

1982), the Court noted that:

The unfair bidding advantage one contractor

derives from the failure to list required

subcontractors is generally threefold: (1) it

provides the precious few minutes which may be

saved by failing to provide a name for the

appropriate blank on form D-1 and matching the

name with the price used in the bid

computation, (2) it allows the potential for

speculation, by use of a phantom price and

efforts to shop that item or trade until a

subcontractor can be found at the speculative

contract price, and (3) it permits a successful

bidder to accept additional subcontractor bids

after the bid opening, giving the opportunity

for undercutting the low subcontractor on whom

he relied in formulating his bid.

35. Section 120.57(3)(f), Florida Statutes (1997), also

provides in pertinent part:

(f) In a competitive-procurement protest, no

submissions made after the bid or proposal

opening amending or supplementing the bid or

proposal shall be considered.

It is concluded that, for purposes of this statute, Hubbard's DBE

utilization forms should be considered to have been "opened" at the

end of the three-day period for their submission under Florida

Administrative Code Rule 14-78.003(2)(b)3.b. Hubbard's attempt to

change its DBE utilization forms after the deadline should not be

considered.

36. Hubbard made the argument that, for purposes of Section

120.57(3)(f), the bid opening in this case was on October 29, 1997,

and Hubbard's timely DBE utilization forms submitted on November 3,

1997, should not be considered, leaving only the representation in

the DBE Utilization Summary form Hubbard included with its initial

bid submission that Hubbard would meet the DBE goals for the

project. This argument is rejected. Clearly, DBE utilization

forms submitted in accordance with Florida Administrative Code Rule

14-78.003(2)(b)3.b should be considered. Besides, if those forms

are not considered, Rule 14-78.003(2)(b)3 would require rejection

of the bid as non-responsive.

37. Hubbard cites State Contracting & Engineering Corp. v.

Dept. of Transp. , 1998 WL 161227, 23 Fla. L. Week D942 (Fla. 1st

DCA 1998), for the proposition that Florida Administrative Code

Rule 14-78.003(2)(b)3 is not dispositive. In State Contracting &

Engineering (which has not yet been released for publication in the

permanent law and is still subject to revision or withdrawal), the

court observed that the requirements of some subsections of Rule

14-78 are enforced at the time the subcontracts are reviewed. But

that observation related to the enforcement of subsections of Rule

14-78 imposing requirements concerning the sources of labor and

materials that qualify as a part of the DBE goal. Those rule

provisions do not suggest that their requirements must be met at

the time the bid is submitted to the agency; as the DOT interprets

them, those requirements are enforced at the time the subcontracts

are reviewed.

38. In contrast, State Contracting & Engineering also

acknowledges the DOT's consistent interpretation of Rule 14-

78.003(2)(b)3--i.e., that the sufficiency of the DBE Utilization

forms included in a bid submission is determined at the time of bid

submission based on the forms themselves. The actual holding of

State Contracting & Engineering affirms this interpretation of Rule

14-78.003 (2) (b) 3.

39. Hubbard relied on the decision in Overstreet Paving Co.

v. Dept. of Transp. , 608 So. 2d 851 (Fla. 1st DCA 1992), as

standing for the proposition that errors of the kind made by

Hubbard in this case are not material. But in Overstreet , the

issue was whether a required DBE utilization form was inadvertently

omitted from a bid submission or whether DOT lost it. There was

never any question as to the existence or contents of the form.

Given those facts, the court held that Overstreet's evidence

shifted the burden to DOT to prove that the form was not submitted

and that DOT failed to meet its burden.

40. To help explain its holding, Overstreet contained dicta

that omission of the DBE utilization form in that case was a "minor

technical discrepancy" and that the form itself was a "mere

technicality." However, it is not clear from the decision that the

court would not have ruled differently if the contents of the form

were not clear. It also cannot be inferred from the decision that

the court would countenance changing the contents of a DBE

utilization form after the Rule 14-78.003(2)(b)3.b deadline has

expired.

41. Hubbard also relied on Hubbard Construction Co. v. Dept.

of Transp. , 642 So. 2d 1192 (Fla. 1st DCA 1994), as additional

support for the proposition that errors of the kind made by Hubbard

in this case are not material. Although not apparent from the

court decision itself, the Recommended Order, Hubbard Construction

Co. v. Dept. of Transp., DOAH Case No. 92-4018BID, entered October

21, 1992, clarifies the facts. In that case, Hubbard used a DBE

who was not listed in the applicable DBE Directory because its DBE

certificate had expired and its pending application for

recertification was not filed 90 days prior to expiration.

However, the DBE's application for recertification was delayed due

to the DOT's last-minute requests for additional information that

had no basis, in law or fact. In addition, while DOT had a policy to

leave an expired DBE in the directory if its application for

recertification was filed prior to 90 days before the expiration of

its certificate, regardless of the length of time necessary to process

the application for recertification, including any delays created by

the DOT's requests for additional information, DOT had no rule that

required DBE applicants for recertification to file for renewal not

later than 90 days prior to expiration of their certifications. The

Hearing Officer recommended that, on those facts, Hubbard should be

allowed to count the DBE's participation towards meeting the project's

DBE goals, but DOT's Final Order rejected the recommendation.

42. The court in Hubbard Construction simply held that the

Recommended Order was supported by competent and substantial evidence

and should not have be rejected in the DOT's Final Order. As in the

case of the prior erroneous uses of Suncoast Fabric on the Polk County

Parkway project, and the case of Murphree Bridge, it appears that

Recommended Order reinstated by the Hubbard Construction decision

turned more on fairness considerations than materiality. It cannot be

inferred from Hubbard Construction that the outcome would have been

the same without the DOT's misconduct. In contrast, in this case

Hubbard was not induced by DOT to use Suncoast Fabrics. Hubbard knew

State Project No. 97160-3320 was a state-funded project, and Suncoast

was clearly noted to be unqualified in the applicable DBE directory.

RECOMMENDATION

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

it is

RECOMMENDED that the Department of Transportation enter a final

order awarding State Project No. 97160-3320 to Smith & Company.

RECOMMENDED this 1st day of May, 1998, in Tallahassee, Leon

County, Florida.

___________________________________

J. LAWRENCE JOHNSTON

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 1st day of May, 1998.

COPIES FURNISHED:

F. Alan Cummings, Esquire

Cummings & Thomas, P.A.

Post Office Box 1116

Ft. Lauderdale, Florida 33302-1116

Paul Sexton, Esquire

Chief, Administrative Law Section

Department of Transportation

605 Suwannee Street

Tallahassee, Florida 32399-0458

Donna H. Stinson, Esquire

Broad & Cassel

215 South Monroe Street

Suite 400

Tallahassee, Florida 32301

Thomas F. Barry, Secretary

Attention: Diedre Grubbs

Haydon Burns Building

Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399-0450

Pamela Leslie, General Counsel

Department of Transportation

Haydon Burns Building

Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399-0450

NOTICE OF RIGHTS 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.