FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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No. 1D18-2035

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ASPHALT PAVING SYSTEMS, INC.,

Appellant,

v.

ANDERSON COLUMBIA and STATE 

OF FLORIDA, DEPARTMENT OF 

TRANSPORTATION,

Appellees.

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On appeal from the Department of Transportation.

Mike Dew, Secretary.

February 18, 2019

B.L. THOMAS, C.J.

Asphalt Paving Systems, Inc. appeals the Florida Department 

of Transportation’s final order denying a petition for agency review

of the Department’s decision to preclude a challenge to a purported 

“supplemental agreement” which was not subject to competitive

bidding. Asphalt Paving asserts that the well-pled allegations of 

its petition established standing and entitled it to a formal hearing 

pursuant to section 120.57(1), Florida Statutes. We agree and 

reverse. 
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Facts

In 2016, the Department published a notice seeking bid 

proposals for a maintenance contract for the highways in the 

Department’s District 3 area. The bid solicitation specified that 

the work included the maintenance of “rumble strips,” or raised 

lines along the edges of roads that make a distinct noise on impact, 

designed to warn drivers about speed restrictions or the roadway’s 

edge. Appellee Anderson Columbia was the only bidder on the 

maintenance contract, and the Department executed a contract 

with Anderson Columbia. 

Due to numerous public complaints regarding the noise 

generated by the rumble strips, the Department decided to fill the 

strips. The Department entered into an agreement with Anderson 

Columbia, calling for the repair of the Mahan Drive rumble strips 

by “microsurfacing.” The Department did not publish a bid 

solicitation for this work. 

Asphalt Paving filed an amended petition with the 

Department under section 120.57(1), Florida Statutes, requesting 

that the microsurfacing work be removed from the maintenance 

contract and submitted for public bidding. Asphalt Paving stated 

that the work is of the type that Asphalt Paving routinely engages 

in, and if the Department had solicited public bids on the work, 

Asphalt Paving would have bid on it. Asphalt Paving alleged that 

the work was required to be publicly bid, as it did not qualify as 

the subject of a “supplemental agreement” under section 

337.11(9)(b), Florida Statutes, because the microsurfacing did not 

relate to the original contract. Asphalt Paving asserted that the 

Department’s interpretation of section 337.11(9), Florida Statutes, 

was contrary to legislative intent mandating public bidding for the 

benefit of the taxpayers. 

The Department dismissed Asphalt Paving’s request for a 

formal hearing. In its final order, the Department stated that 

Asphalt Paving’s amended petition did not provide information 

sufficient to establish how its substantial interests would be 

affected by agency action, and therefore Asphalt Paving had not 

demonstrated standing for a formal hearing under section 

120.57(1), Florida Statutes. The Department stated that its 

decision to supplement the original contract was done in 
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accordance with section 337.11(9), Florida Statutes, and therefore 

Asphalt Paving’s “alleged potential economic injury [was] 

insufficient to afford standing under the injury in fact analysis.” 

Analysis

“Whether a party has standing to bring an action is a question 

of law that is to be reviewed de novo.” Mid-Chattahoochee River 

Users v. Fla. Dep’t of Entvl. Prot., 948 So. 2d 794, 796 (Fla. 1st DCA 

2006). “To establish entitlement to a section 120.57 formal 

hearing, one must show that its ‘substantial interests will be 

affected by proposed agency action.’” Fairbanks, Inc. v. State, Dep’t 

of Transp., 635 So. 2d 58, 59 (Fla. 1st DCA 1994); §§ 120.52(13)(b); 

120.57, Fla. Stat. (2018). “This, in turn, requires a showing that 

(1) the proposed action will result in injury-in-fact which is of 

sufficient immediacy to justify a hearing; and (2) the injury is of 

the type that the statute pursuant to which the agency has acted 

is designed to protect.” Id. (citing Agrico Chem. Co. v. Dep’t of 

Envtl. Regulation, 406 So. 2d 478 (Fla. 2d DCA 1981).

All the allegations in Asphalt Paving’s amended petition are 

assumed to be factually correct: “In determining whether a party 

has standing to seek a formal administrative hearing, the 

allegations contained in the party's petition must be taken as 

true.” Mid-Chattahoochee, 948 So. 2d at 796; see also Hospice of 

Palm Beach County, Inc. v. State, Agency for Health Care Admin., 

876 So. 2d 4, 5 (Fla. 1st DCA 2004) (holding that “[i]n determining 

whether [the appellant] had standing, the allegations contained in 

its petition must be taken as true”); Ybor III, Ltd. v. Florida 

Housing Finance Corp., 843 So. 2d 344, 346 (Fla. 1st DCA 2003) 

(holding that allegations in appellant’s petition for section 120.57 

hearing should be “taken as true for purposes of appellate review”). 

Section 337.11(9)(b), Florida Statutes, provides criteria for 

work that may be permitted through a “supplemental agreement” 

to an existing contract, rather than bid publicly as a new contract.

Asphalt Paving alleged that the work was required to be procured 

through public bidding, and the work did not meet the criteria of 

section 337.11(9)(b), Florida Statutes. Asphalt Paving relies on 

this court’s decision in Keystone Peer Review Org., Inc. v. State, 

Agency for Health Care Admin., 26 So. 3d 652 (Fla. 1st DCA 2010) 

for the proposition that, because Asphalt Paving alleged that the 
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microsurfacing was subject to public bidding, it established 

standing. 

In Keystone, the Agency for Health Care Administration 

awarded a contract for health services to a vendor after publishing 

a request for information without publicly bidding the contract. 26 

So. 3d at 653. Keystone responded to the request for information

but was not awarded the contract, and filed a protest and petition 

challenging the award and requesting a hearing pursuant to 

section 120.57(1), Florida Statutes. Id. The agency denied 

Keystone’s request for a formal hearing, stating that the contract 

fell within a statutory exemption to competitive bidding, and 

therefore Keystone did not have standing to protest the agency’s 

award of the contract. Id. However, Keystone had alleged in its 

petition that the contract was subject to public bidding. Id at 654. 

This court stated that it was required to accept Keystone’s 

allegations that the contract did not qualify for an exemption from

the public bidding, and therefore the allegations were sufficient to 

demonstrate standing. Id.

Appellees argue that Asphalt Paving’s argument that the 

exemption under section 337.11(9)(b), Florida Statutes does not 

apply asserts only a legal conclusion that cannot establish 

standing. However, this court in Keystone agreed with the 

appellant’s assertion that “a factual dispute exists as to whether 

the contract is exempt from the competitive bidding process.” 26 

So. 3d at 653. (emphasis added). Here, as in Keystone, Asphalt 

Paving’s amended petition alleged that the microsurfacing did not 

meet the statutory criteria for a public bidding exemption. That 

assertion, taken as true, establishes an injury that affects Asphalt 

Paving’s substantial interests and establishes a material factual 

dispute, which establishes Asphalt Paving’s standing and entitles

it to a formal hearing under to section 120.57(1), Florida Statutes. 

Keystone, 26 So. 3d at 654. 

We reverse the Department’s final order dismissing Asphalt 

Paving’s petition for lack of standing. We remand with directions 

that the Department refer the petition for a formal hearing to 

determine whether the work “could not reasonably have been 

contemplated or foreseen in the original Plans and Specifications,” 

and therefore was exempt from public bidding. This determination 

will require the resolution of factual and legal questions regarding 
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the nature of the work involved and the application of section 

337.11(9)(b), Florida Statutes. 

REVERSED and REMANDED. 

JAY, J., and LONG, JR., ROBERT E., ASSOCIATE JUDGE, concur.

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Not final until disposition of any timely and 

authorized motion under Fla. R. App. P. 9.330 or 

9.331.

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Scott Widerman of Widerman Malek, PL, Melbourne; John F. 

Palladino and Amy R. Weintrob of Hankin Sandman Palladino & 

Weintrob, Atlantic City, NJ, for Appellant.

W. Robert Vezina III and Megan S. Reynolds of Vezina, Lawrence 

& Piscitelli, P.A., Tallahassee; Eduardo S. Lombard of Radley Law 

Firm, Tallahassee; Zeb Cheshire, General Counsel, Anderson 

Columbia Co., Inc., Lake City, for Appellee Anderson Columbia. 

Marc A. Peoples, Assistant General Counsel, Florida Department 

of Transportation, Tallahassee, for Appellee Florida Department of 

Transportation.