Capeletti Bros., Inc. v. State Dept. of General Services

• Decision Date: 07 June 1983
• Docket Number: No. AQ-115,AQ-115
• Citation: 432 So.2d 1359
• Parties: CAPELETTI BROTHERS, INC., Appellant, v. STATE of Florida DEPARTMENT OF GENERAL SERVICES, and Bergeron Land Development, Inc., Appellees.
• Court: Florida District Court of Appeals

Page 1359

432 So.2d 1359

CAPELETTI BROTHERS, INC., Appellant, v. STATE of Florida DEPARTMENT OF GENERAL SERVICES, and Bergeron Land Development, Inc., Appellees.

No. AQ-115.

District Court of Appeal of Florida First District.

June 7, 1983.

Kenneth G. Oertel of Oertel & Hoffman, Tallahassee, for appellant.

Thomas M. Beason and Sylvan Strickland, Tallahassee, for DGS.

Michael E. Zealy, Fort Lauderdale, for Bergeron.

NIMMONS, Judge.

Capeletti Brothers, Inc. (Capeletti), appeals from a final order of the Department of General Services (DGS) awarding Bergeron Land Development, Inc., (Bergeron) a contract for rough site preparation and grading for the proposed Reception Center and Correctional Institution in Dade County. For reasons hereinafter discussed, Capeletti claims that neither Bergeron nor any of the other contractors who submitted bids were capable of performing the contract. ¹ We affirm the award.

The chronology of the pertinent facts leading up to the subject controversy, which facts were found by the Department of Administrative Hearings (DOAH) hearing officer and subsequently adopted in DGS' final order appealed from, are set forth in the succeeding paragraphs.

On June 21, 1982, DGS issued specifications and contract documents as a basis for competitive bidding on the proposed correctional facility. The specifications required each bidder "... to be familiar with all federal, state and local laws, ordinances, rules and regulations that in any manner affect the work" and that "ignorance on the part of the bidder will in no way relieve him from responsibility." The specifications also provided:

Bidders are required, before submitting their proposals, to visit the site of the proposed work and completely familiarize themselves with the nature and extent of the work and any local conditions that may in any manner affect the work to be performed and the equipment, materials and labor required. They are also required to examine carefully the drawings, specifications and other bidding documents to inform themselves thoroughly regarding any and all conditions and requirements that may in any manner affect the work.

The specifications further provided that requests for correction or interpretation of the meaning of the drawings and specifications or other bidding documents should be in writing, addressed to DGS' consulting architect/engineer, and that all such interpretations and supplemental instructions would be in the form of written addenda to the bidding documents.

Before submitting its bid, Capeletti, by letter of July 6, 1982, called to the attention of the architect/engineer that an existing road running parallel to and near the northern boundary of the project site, which road was designated on the site location drawing as N.W. 41st Street, was not a public road, but, instead, a private road on private property. In fact, the road was owned by Florida Power and Light Corporation and had not been dedicated for public use. Pursuant to a license agreement entered into three years earlier, Capeletti was given permission by Florida Power and Light to use the road for "access for hauling rock and fill." A fence with a gate installed by Capeletti at some time in the past blocked access to the road and a sign on the gate stated that the road was under private ownership. ² In its letter to the architect/engineer, Capeletti inquired whether another access road would be provided to the successful bidder. The architect/engineer did not issue a written addendum or otherwise notify prospective bidders that N.W. 41st Street was not a public road.

Lump sum bids were submitted and the bids were opened on July 14, 1982. Bergeron was the low bidder at $1,985,000. The second lowest bid was $2,390,000 and Capeletti, the fourth lowest bid, was $2,560,000. A total of twelve contractors submitted bids. The estimated DGS budget for the project was $2,400,000.

On August 19, 1982, DGS gave written notice to all bidders of its intent to award the contract to Bergeron. Capeletti filed a notice of protest within 72 hours pursuant to Section 120.53(5), Florida Statutes, and within 10 days thereafter filed its Petition for Formal Hearing pursuant to Section 120.57(1), Florida Statutes. Capeletti's petition requested that it be awarded the contract on the grounds that it was the only bidder having access to the project site. In the alternative, Capeletti asked that all bids be rejected and the project be readvertised.

On September 22, 1982, DGS notified in writing Bergeron and Capeletti that it was rejecting all bids for the reason that the drawings erroneously showed a public street, N.W. 41st Street, adjoining the project site's northernmost boundary and that such was misleading. Bergeron then filed a notice of protest and a petition for a Section 120.57(1) hearing. The Capeletti and Bergeron petitions were consolidated for hearing before a DOAH hearing officer. The hearing was concluded on October 25, 1982, and the hearing officer filed his recommended order with DGS on November 10 recommending that the contract be awarded to Bergeron. After the filing of exceptions to the recommended order, DGS issued its final order receding from its previously expressed intention to reject all bids and awarding the contract to Bergeron from which order Capeletti appeals pursuant to Section 120.68, Florida Statutes.

From the time that the bids were invited through the October 25, 1982, final hearing, there was no existing road for use by contractors in gaining access to the project site. In accordance with the bid specifications and contract documents, Bergeron visited the project site prior to submitting its bid and, through observation and inquiry, determined that the roadway shown on the project drawings as an extension of N.W. 41st Street along the northern boundary of the property was not, in fact, a dedicated public road. As of the time of the hearing, Bergeron had not yet worked out definitive plans for gaining access to the site but indicated that it planned to obtain permission from adjacent property owners for temporary use of their property.

One of the reasons advanced at the hearing by DGS for its announced intention to reject all bids is that failure to do so could result in Bergeron's claiming damages for delay in obtaining access to the job site, the contract documents providing for delay damages to the contractor in case of a delay for reasons other than changes in the work. The amount provided for delay damages would be 10 per cent of the contract price per day, divided by the number of days in the 150-day contract period. The hearing officer found such fear to be unfounded for two reasons. First, the contract time does not begin to run until DGS issues a notice to proceed. Since no contractual provision sets an exact time within which any such notice should issue, "it may well be that either DGS or Bergeron can solve an access problem before issuance of the notice to proceed." Second, the hearing officer found that Bergeron submitted its bid with full knowledge that no public access was afforded and that it planned instead to furnish its own method of gaining access. Also, the hearing officer noted that Bergeron contended at hearing that it intended to perform the obligations of the contract at the price it had bid, including providing its own access to the site, and that, under such circumstances, it would seem improbable that any claim for delay concerning access could be deemed meritorious.

The...