CopyCited 9 times | Published | Florida 1st District Court of Appeal
...1978. Complaint by Couch was filed February 21, 1978, against DOT requesting proceedings under Florida Statute §
120.57 and Chapter 14-6, Rules of the Department of Transportation, for the following relief: *186 "[T]hat Respondent [DOT] find, under section
337.16, Florida Statutes, and section 8-8 of the Standard Specifications that White Construction Company, Inc., was disqualified from submitting bids on December 21, 1977, and January 12, 1978, on the basis of its status as delinquent in the...
...im to a hearing pursuant to §
120.57 ..." The foregoing holding is correct and supported by this Court's decision in Greenhut Construction Co. v. Henry A. Knott, Inc.,
247 So.2d 517 (Fla. 1st DCA 1971). On the claim that White be disqualified under §
337.16, [2] the recommended order, as adopted by DOT, holds: "[T]he statute in question, F.S. §
337.16(1), seems to clearly provide that a contractor who is delinquent on a previously awarded contract, as disclosed by an investigation by the highway engineer, is disqualified from bidding....
...ite "was not the lowest responsible bidder." The DOT's implied holding, that that ground, too, was foreclosed by the Supreme Court decision in White Construction Company v. Division of Administration,
281 So.2d 194 (Fla. 1973), is erroneous. Neither §
337.16 nor the Supreme Court's White case has eliminated the traditional competitive bidding requirement that the contract be awarded to the lowest responsible bidder....
...ly perform the new job being bid, particularly since time was a material factor. We note that the concluding paragraph of the Supreme Court's White decision recognizes that, although the contractor there was not disqualified as a matter of law under §
337.16, its "responsibility" remained a factor to be considered by the DOT prior to the award of the contract stating (
281 So.2d at 197): "However, although the Department of Transportation must open the bid submitted by White Construction Company...
...The matter of White's responsibility to perform may ultimately be resolved favorably to White, but that is a factual determination requiring §
120.57 proceedings which afford Couch and White opportunity to be heard. The DOT for its part plainly admits it routinely uses the delinquency provisions of Florida Statute §
337.16 and its own amplifying rules [6] for "arm twisting," without following through by either determining final delinquency and suspending qualification to bid, or by rescinding the preliminary notice of delinquency....
...further proceedings as are necessary to determine the lowest responsible bidder at the January rebidding. SMITH, J., concurs. BOYER, Acting C.J., dissents. BOYER, Acting Chief Judge, dissenting. I agree that the remedies provided by Florida Statute 337.16 are not exclusive and do not encompass the traditional competitive bidding requirement that the contract be awarded to the lowest responsible bidder. I do not agree with the proposition articulated by the DOAH hearing officer, as found in that portion of the recommended order quoted in the foregoing opinion, that F.S. 337.16 "seems to clearly provide that a contractor who is delinquent on a previously awarded contract * * * is disqualified from bidding." It is clear from a reading of the entire statute that the legislature did not contemplate that immediately u...
...n of fact appears any place in the record, nor even in the briefs, touching upon White's responsibility except in so far as the alleged delinquency on a prior contract may be so construed: That alleged delinquency clearly falls within the ambit of F.S.
337.16 and, as such, is barred by White Construction Co. v. Division of Admin.,
281 So.2d 194 (Fla. 1973). Further, while agreeing, as aforesaid, that there is a distinction between a disqualification pursuant to F.S.
337.16 and the traditional competitive bidding requirement that the contract be awarded to the lowest responsible bidder, I do not construe the concluding paragraph of the Supreme Court's opinion in White Construction Co....
...That portion of the opinion, in my view, relates only to the right of DOT to reject all bids and to proceed to readvertise or perform the work with convict labor or free labor. It is important to observe, I urge, that the issue of White's responsibility, whether under the statute (F.S. 337.16) or under the traditional competitive bidding requirement that the contract be awarded to the lowest responsible bidder, is beyond the issues sought by Couch to be reviewed here....
...the pleadings, record, and even the allegations of its briefs, is barred by White Construction Co. v. Division of Admin., supra . I dissent from the majority. NOTES [1]
361 So.2d 172, Case # II-314, Opinion filed June 16th, 1978. [2] Florida Statute §
337.16: (1) No contractor shall be qualified to bid when an investigation by the highway engineer discloses that such contractor is delinquent on a previously awarded contract, and in such case his certificate of qualification shall be suspended or revoked....
CopyCited 3 times | Published | Florida 1st District Court of Appeal | 12 Fla. L. Weekly 2376
...Wilkinson & Jenkins' certificate of qualification due to unsatisfactory work progress on a state road project in Palm Beach County. On April 28, 1987, Wilkinson & Jenkins requested a hearing on DOT's proposed determination of delinquency pursuant to section 337.16(1)(b), Florida Statutes....
...Wilkinson & Jenkins expended its best efforts in a diligent attempt to complete the job on time, and was delayed through no fault of its own. Clearly, those issues are necessary and material to the resolution of the administrative proceeding. Under section 337.16(1), a contractor shall not be qualified to bid on a project when an investigation by DOT discloses that the contractor is "delinquent" on a previously awarded contract. In such case, the contractor's certificate of qualification shall be suspended or revoked. Section 337.16(1)(a) defines delinquency as meaning unsatisfactory progress being made on a construction project or the expiration of the allowed contract time under circumstances when the contract work is not complete....
...In its civil action brought under that statute, Wilkinson & Jenkins alleged, inter alia, that DOT delayed the project causing damages to Wilkinson & Jenkins. Thus, it can be seen that the hearing officer would ultimately find either that Wilkinson & Jenkins was delinquent for purposes of section 337.16, or that Wilkinson & Jenkins had expended its best efforts and was not at fault....
CopyCited 3 times | Published | Supreme Court of Florida
...ignored. Subsequently, White, on advice of counsel that it was not disqualified from bidding because of the governing statutes and Administrative Code (Chapters 1-4, 14-9, Administrative Code; Florida Statutes, Sections 337.13,
337.14,
337.11(3) and
337.16, F.S.A.), filed its bid in the amount of $522,400.76 with the Department of Transportation within the time, at the place, and in the manner specified for such filing....
...rtation contracts and denies that at all times material to this action White has never had its qualifications to bid suspended in compliance with Department of Transportation rules and regulations, alleges that it has complied with Florida Statutes, Section 337.16, F.S.A., and Chapter 14-8.01, Administrative Code, in that it has suspended petitioner's Certificate of Qualification for good cause pursuant to Chapter 14-8.01, 14.C, rather than declaring White delinquent in the progress of work, and alleges that since White has not been declared delinquent in the progress of work, the provisions of Chapter 14-9.01, rules and regulations are not applicable. Florida Statutes, Section 337.16, F.S.A., entitled, Delinquent Bidding, Suspension and Revocation of Certificate of Qualification, provides in pertinent part: "(2) The department may suspend, for a specified period of time, or revoke for good cause any certificate of qualification....
...(3) The contractor's performance or payment record in connection with contract work becomes unsatisfactory. (4) Willful violation of Florida Administrative Code Rule 14-2.01, covering gifts, gratuities, etc." If respondent's contentions are correct in that it acted under Chapter 14-8.01, 14.C, and Florida Statutes, Section 337.16(2) rather than under Chapter 14-8.01, 14.8 and Florida Statutes, Section 337.16(3), then respondent's allegation as to the inapplicability of the procedure set out in Chapter 14-9.01 regarding rules to be followed in declaring a contractor delinquent in the progress of work has merit....
...xercise such drastic authority and responsibility in such an important matter as the suspension of a bidder for cause. Pertinent provisions of the Florida Statutes to be taken into consideration with the aforequoted Subsection (2) of Florida Statute
337.16 provide, Subsection 1 of Section
20.23, Florida Statutes, provides as follows: " The head of the department of transportation is the secretary of transportation....
CopyCited 1 times | Published | Florida 1st District Court of Appeal | 1995 Fla. App. LEXIS 5299, 1995 WL 296206
...("White") and to refer D.A.B.'s bid protest to the Division of Administrative Hearings for a formal hearing. We hold that the disqualification of White as a road contractor on the basis of irresponsibility must be determined exclusively in an administrative proceeding conducted pursuant to section 337.16, Florida Statutes (Supp....
...r of law, from granting D.A.B. the relief it sought. The department ruled that D.A.B.'s allegations concerning White's delinquency-based nonresponsibility must be dealt with solely in the context of an administrative proceeding conducted pursuant to section
337.16, Florida Statutes (Supp. 1994). It rejected D.A.B.'s assertion that a prequalified contractor could be declared a nonresponsible bidder under section
337.11(4), Florida Statutes (1993), without following the procedures set forth in section
337.16....
...istent with section
120.53(5), could be afforded). D.A.B. argues further that, because section
337.11(4) provides that the department may award contracts to the lowest responsible bidder, [1] responsibility may be determined outside the context of a section
337.16 proceeding....
...1st DCA 1978), and Baxter's Asphalt & Concrete, Inc. v. Dep't of Transp.,
475 So.2d 1284 (Fla. 1st DCA 1985), D.A.B. asserts that it may challenge White's lack of responsibility under section
337.11(4) in a bid protest proceeding. In Couch, this court held that section
337.16 did not eliminate the traditional competitive bidding requirement that the contract be awarded to the lowest responsible bidder as set forth in section
337.11, and the issue of responsibility was raised in the bid protest proceeding. In Baxter's, this court again recognized that the responsibility of a bidder may be challenged under section
337.11 in a bid protest proceeding. D.A.B., however, overlooks the language and evolution of the amendments to section
337.16 enacted after this court's opinions in Couch and Baxter's issued. In 1984 and 1985, the language of section
337.16(1) was expanded substantially to provide a detailed procedure by which the department must provide procedural due process to a road contractor whose certificate of qualification to bid on department projects is subject to potential denial, suspension or revocation. [2] *943 Prior to these 1984 and 1985 changes, section
337.16(1), Florida Statutes (1983), provided only that: No contractor shall be qualified to bid when an investigation by the highway engineer discloses that such contractor is delinquent on a previously awarded contract, and in such case his certificate of qualification shall be suspended or revoked. Couch was decided before the 1984 and 1985 amendments to section
337.16(1) and is not applicable to the present case. Although this court's opinion in Baxter's was issued shortly after enactment of the 1984 and 1985 amendments to section
337.16, Baxter's is not applicable to the present case because the amendments were not in effect at the time the department rejected Baxter's bid or at the time of the administrative hearing in that case. Consequently, the opinion in Baxter's did not consider the 1984 and 1985 amendments and their impact on delinquency-based claims that a contractor is not responsible. The department interprets section
337.16 to require that a road contractor's delinquency be addressed exclusively in administrative proceedings conducted pursuant to section
337.16. The department's rules promulgated thereunder are designed to insure that prequalified contractors are afforded procedural due process before their qualified status is vacated. Under the department's interpretation, both sections
337.11 and
337.16 deal with delinquency-based responsibility challenges and, being in pari materia, must be read in conjunction with each other....
...The department posits that, under sections
337.14(3) and (4), if a contractor is prequalified and its certificate has not been suspended or revoked at the time of the bid, the contractor must be deemed responsible as a matter of law. [3] The department further explains that it is clear from the 1994 revision to section
337.16(2) [4] that a prequalified contractor's *944 lack of responsibility must be addressed in the context of a proceeding concerning the contractor's prequalification status and not on a project-by-project basis through bid protests proceedings....
...The agency's interpretation need not be the sole possible interpretation or even the most desirable one; it need only be within the range of permissible interpretations. State, Bd. of Optometry v. Florida Soc'y of Ophthalmology,
538 So.2d 878, 885 (Fla. 1st DCA 1988). The department has correctly construed section
337.16 and its relationship with section
337.11. An administrative hearing triggered by a bid protest under sections
337.11 and
120.53(5) is not the proper vehicle by which a contractor's responsibility and qualification to bid is to be investigated and adjudicated. Under section
337.16, the department cannot affect, modify, or revoke a road contractor's bidding privileges until there has been an adjudication of the contractor's nonresponsibility. Therefore, even though White was alleged to be delinquent on a state project, that allegation could not be used as the basis for rejection of its bids on this project in the instant case because an administrative proceeding conducted pursuant to section
337.16 had not been concluded and a final determination of nonresponsibility had not been rendered at the time the bids were awarded....
...NOTES [1] Section
337.11(4), Florida Statutes (Supp. 1994), provides: The department may award the proposed work to the lowest responsible bidder, or it may reject all bids and proceed to rebid the work in accordance with subsection (2) or otherwise perform the work. [2] Section
337.16(1), Florida Statutes (Supp....
...e period of time as specified therein, the department shall request the information a second time. If the applicant fails to comply with the second request within a reasonable period of time as specified therein, the application shall be denied. [4] Section 337.16(2), Florida Statutes (Supp....
