Ajax Const., Inc. v. State, Dept. of Corrections, AK-70

• Decision Date: 02 April 1982
• Docket Number: No. AK-70,AK-70
• Citation: 413 So.2d 779
• Parties: AJAX CONSTRUCTION, INC., Appellant, v. STATE of Florida, DEPARTMENT OF CORRECTIONS and Dyson and Company, Appellees.
• Court: Florida District Court of Appeals

Page 779

413 So.2d 779

AJAX CONSTRUCTION, INC., Appellant, v. STATE of Florida, DEPARTMENT OF CORRECTIONS and Dyson and Company, Appellees.

No. AK-70.

District Court of Appeal of Florida First District.

April 2, 1982.

Rehearing Denied May 27, 1982.

Philip S. Parsons of Ausley, McMullen, McGehee, Carothers & Proctor, Tallahassee, for appellant.

Michael J. Minerva, Gen. Counsel, Dept. of Corrections, Tallahassee, and Barry Silber of Levin, Warfield, Middlebrooks, Mabie & Magie, P. A., Pensacola, for appellees.

McCORD, Judge.

This is an appeal of nonfinal agency action denying appellant's request for formal proceedings. We reverse.

On September 14, 1980, the Department of Corrections (Department) sought bids for the construction of Prison Building Number 14 and alternate bids for the construction of Prison Building Number 15 at Tomoca Correctional Institute. Bidders were required to list in the submitted bids each subcontractor they intended to use for the project. The sealed bids received were open on December 22, 1981. Appellant, Ajax Construction, Inc., was the low bidder on Building Number 14, but appellee, Dyson and Company (Dyson), submitted the lowest combination bid for both buildings.

On January 12, 1982, Dyson wrote a letter to the Department indicating that it intended to use a certain subcontractor which had not been listed in its original bid. On January 14, 1982, appellant sent a telegram to the Department protesting that by this change Dyson had not complied with the listing requirements. This was followed by a formal letter of protest on January 19, 1982. On January 21, 1982, the Department notified each bidder by mail of its intention to award the contract to Dyson. That letter also stated "failure to file a protest within the time prescribed by Section 120.53(5), Florida Statutes, shall constitute a waiver of proceedings under Chapter 120, Florida Statutes." The letter was received by appellant on January 25, 1982. On February 9, 1982, appellant filed a petition for proceedings under Section 120.57(1), Florida Statutes. Dyson moved to quash or dismiss appellant's protest. The Department came to the conclusion that the time limit set forth by Section 120.53(5) governed the case and that such time limit was not complied with in that appellant's protest was premature. The Department noted that if, upon review, it were found that appellant did not waive its right to Chapter 120 proceedings, the Department would not refuse a request for 120.57(2) proceedings. ¹ This appeal followed.

We hold that appellant did not waive its right to Chapter 120 proceedings. The situation here is analogous to the ruling of the Supreme Court in Williams v. State, 324 So.2d 74 (Fla.1975). There, the Supreme Court ruled that a notice of appeal which is prematurely filed shall exist in a state of limbo until the judgment in the respective civil or criminal case is rendered; that at the time of rendition, the notice of appeal shall mature and shall vest jurisdiction in the appellate court. Having already filed its protest with the Department, appellant here was not required to file an additional protest in response to the Department's January 21 notice to bidders. The Department could have stated in its January 21 notice that a previous protest would be considered abandoned unless renewed within the time limit provided by the aforesaid statute, but the notice as promulgated did not have that effect.

Reversed and remanded.

BOOTH, J., concurs.

ROBERT P. SMITH, Jr., C. J., dissents, with written opinion.

ROBERT P. SMITH, Jr., Chief Judge, dissenting.

We are concerned here with an order of the Department of Corrections denying appellant Ajax section 120.57 proceedings on a disputed agency decision to award a contract to Dyson, another bidder. The Department found that Ajax did not protest the agency's proposed decision and request APA processes at the time and in the manner required by section 120.53(5), Florida Statutes (1981)--in other words, that Ajax did not take advantage of the "clear point of entry" to APA processes afforded by the controlling statute. I agree with the Department and so dissent from the Court's decision.

Liberality in affording APA proceedings on protests aimed at proposed agency action is ordinarily to be commended, but in the context of disputes arising from the bidding of public works and purchases, orderliness and predictability of consequences are equally to be valued. Three distinct interests are in competition when a contracting agency announces its award: the low bidder wants to sign a contract and begin work; his bidding competitors want to prevent that and to have their protests heard and sustained by the agency; and the agency wants to proceed as rapidly as possible in compliance with the law, so to preserve the work and the winning bid (no matter whose bid it is) against loss by delay and litigation. Successfully protecting all three competing interests depends on holding them in a delicate balance; too heavy a hand laid on in support of one of those interests, even so worthy an interest as being heard in section 120.57 proceedings, inevitably harms other important values.

We have repeatedly called upon agencies to provide in their free-form exchanges with affected parties a "clear point of entry" to APA processes. This, we have said, is a necessary prerequisite for any later agency decision denying a party APA remedies on the ground that they were not timely requested. E.g., Capeletti Bros., Inc. v. State Department of Transportation, 362 So.2d 346, 348 (Fla. 1st DCA 1978), cert. den., 368 So.2d 1374 (Fla.1979); Bio-Medical Applications of Ocala, Inc. v. Office of Community Medical Facilities, 374 So.2d 88 (Fla. 1st DCA 1979); United States Service Industries-Florida v. State Department of Health and Rehabilitative Services, 385 So.2d 1147, 1148-49 (Fla. 1st DCA 1980). Responding to that call in this most needful context of the contract bidding process, the 1981 Legislature provided in section 120.53(5) minimum standards for agency rules providing a clear point of entry to losing bidders who wish to pursue their disputes of the announced award in section 120.57 proceedings. Though the statute is not in all respects a model of clarity, it is clear in requiring that a disappointed bidder file his protest of the agency's announced decision within a certain number of hours and days after the decision is announced in one of two particular ways.

In this rather simple case, Ajax "protested" by free-form communications, its telegram of January 14 and its letter of January 19, 1982, that Dyson's bid opened December 22 "did not list subcontractors as required by bid documents." But Ajax did not timely protest or request APA proceedings on the Department's announced decision of January 21 to award the work to Dyson. Therefore section 120.53(5) foreclosed section 120.57 proceedings on Ajax's grievance and let stand the Department's award of January 21. The Department so held, having no motive but to apply section 120.53(5) correctly and to conclude a contract with one bidder or the other as soon as possible. Reversing, the Court declares that Ajax's telegram and letter protests of January 14 and 19, aimed at Dyson's bid opened December 22, stood over as a protest of the Department's decision announced January 21. The Court's decision, though well-intended to protect Ajax's interest in having a hearing, is not and in my opinion cannot be explicated in the terms of the statute. The statute is thus bent to the Court's will in order to achieve what is considered to be a just result. In this I apprehend that the Court entirely upsets the system of balanced interests that the statute sought to preserve, and creates abundant new opportunities for delay, confusion, and litigation in an area that can scarce afford new complexity.

The Court's analogy to Williams v. State, 324 So.2d 74 (Fla.1975), a criminal appeal held timely when filed after signing of the judgment and sentencing, but before the judgment was recorded and thus "rendered," is in my opinion untenable; that case involved different interests, a rule of different purposes, and quite different facts.

Chapter 81-296, Laws of Florida, added subsection 120.53(5) to require agency rules governing "resolution of protests arising from the contract bidding process" and specifying minimum rule requirements in relevant part as follows:

(a) The agency shall provide notice of its decision or intended decision concerning ... a contract award ... by posting the bid tabulation at the location where the bids were opened or by certified United States mail, return receipt requested. The notice required by this paragraph shall contain the following statement: "Failure to file a protest within the time prescribed in s. 120.53(5), Florida Statutes, shall constitute a waiver of proceedings under chapter 120, Florida Statutes."

(b) Any person who is affected adversely by the agency decision or intended decision shall file with the agency a notice of protest in writing within 72 hours after the posting of the bid tabulation or after receipt of the notice of the agency decision or intended decision and shall file a formal written protest within 10 days after the date he filed the notice of protest. Failure to file a notice of protest or failure to file a formal written protest shall constitute a waiver of proceedings under chapter 120.

(c) Upon receipt of a notice of protest which has been timely filed, the agency shall stop the ... contract award process until the subject of the protest is resolved by final agency action [unless the agency makes emergency findings] ....

(d) [Provides section 120.57(1) or (2) proceedings after a 14-day opportunity for "mutual agreement between the parties"]

By this statute the clear point of entry for a timely protest of proposed agency action awarding a public contract is a designated window in time...