Stokes as its witnesses. DOT offered Respondent's Exhibits 1-7, which were received into evidence. In addition, the parties stipulated to the introduction into evidence of Joint Exhibits 1-21.
On May 3, 1977, DOT advertised for bids to construct 4.034 miles of interstate highway in Charlotte County, Florida, from a point north of Oilwell Road to a point north of Green Gulf Boulevard. This project, which is the subject matter of this proceeding, was designated as join No 0l075-340l. The closing for bids was 10:30 A.M. on March 30, 1977.
On January 27, 1977, DOT advertised for bids to construct 5.027 miles of interstate highway in Charlotte County, Florida, from the county line to a point north of Oilwell Road. This project, which was adjacent to the "3401 job" was designated as job No. 01075-3407 . The closing date for the bids on this contract was changed from February 23, 1977, to March 23, 1977, by Addendum No.
3 dated March 9, 1977.
Petitioner is a corporation which has been involved in the construction of various types of roads in the sate of Florida for many years, and, for the last 19 years has constructed roads in the area of the state generally north of Tampa. Petitioner was the successful bidder on both the aforementioned projects. Prior to submitting its bid, representatives for Petitioner visited the construction site, observed that the site consisted of flat country with lakes and standing water, and inquired of local residents about area weather conditions. Petitioner's representatives were advised that the area experienced frequent rainfall, but made no inquiry about historical rainfall statistics, either independently or through DOT. On May 26, 1977, Petitioner entered into a contract with DOT in the amount of $5,884,703.32 to construct the "3401 job" consisting of 4.034 miles of interstate highway in Charlotte County, Florida, from a point north of Oilwell Road to a point north of Green Gulf Boulevard, including construction of Green Gulf Boulevard to U.S. 41. In that contract, Petitioner agreed, in part ". . . to fully complete all necessary work . . . within not more than nine hundred calendar days. "
On May 19, 1977, Petitioner entered into a contract with DOT in the amount of $5,734,417.40 to construct the "3407 job" consisting of 5.027 miles of interstate highway in Charlotte County, Florida, from the county line to a point north of Oilwell Road and agreed, in part, to complete necessary work on this project within not more than seven hundred calendar days.
Prior to the advertising and letting of bids on the two above-described projects, a feasibility study was conducted during the 1960s as mandated by federal law, which study was followed by a 4F Environmental Impact Statement approved by the U.S. Secretary of Transportation locating the aforementioned portions of the proposed interstate highway in the Cecil M. Webb Wildlife Area in Charlotte County, Florida. One of the requirements of the 4F Statement is that necessary embankment material for the construction of the portions of the interstate highway herein disputed be excavated from a designated location in the wildlife area, thereby creating a lake to be stocked for public fishing.
Soil samples were taken from the proposed lake borrow area by borings during the period from March 20, 1972 through April 10, 1972. These soil samples were analyzed by DOT personnel, which analysis resulted in a soil report which was entered into evidence in this proceeding. Samples of two strata of A- 2(4) soil, from the proposed borrow area were forwarded to DOT's Gainesville laboratory for X-ray diffraction. These tests resulted in a memorandum dated July 29, 1972, which indicated that the test results showed the materials to contain a small amount, approximately one part in ten of the clay fraction, of
montmorillonite. Montmorillonite is a mineral whose chief characteristic is an affinity for attracting and tenaciously holding excess water, thereby becoming highly plastic and difficult to compact. The presence of montmorillonite is common in coastal areas of Florida, such as Charlotte County. The July 29, 1972, memorandum also contained the further provision that:
Caution is advised in the use of these materials,
as we do not have enough background data, historical data, etc. to determine the effect of different amounts of montmorillonite on material handling characteristics, under varying moisture conditions.
As previously indicated, because of the requirements of the 4F Statement, construction plans and special provisions relating to these two projects required that all material for road embankment was to come from the construction of a lake area in the Cecil M. Webb Wildlife Area. Because of the aforementioned soil analysis, information was placed in the project plans indicating the presence of plastic materials in the Sample 3, 5, and 6, and the following notation was placed in the project plans concerning embankment and sub-grade material:
The material from Strata No. I, 2, and 4 appears satisfactory for use in the embankment. The material from Strata No. 3, 5, and 6 appears satisfactory for use in the embankment
above the water level existing during construction.
However, extreme caution should be followed
in the use of these materials as they are likely to retain excess moisture and may be difficult to dry.
The material from Strata No. 7 and 8 appears satisfactory for use in the embankment. However extreme caution should be followed in
the use of these materials as they are likely to retain excess moisture end may be difficult to dry.
The material from Strata No. 9 is muck. (Emphasis added)
In addition, the following notations were contained in the Special Provisions portion of the contract between Petitioner and DOT, in Paragraph 11 entitled "Embankment":
Source:
The Contractor shall obtain all required material for the proposed embankment from areas within the Cecil M. Webb Wildlife Area. This excavation shall be performed in accordance with the lake construc- tion plans. . . .
(f) Soil Analysis:
The Contractor's attention is directed to the strata which are likely to retain excess moisture and may be difficult to dry.
Prior to commencement of construction on the projects, a pre- construction conference was held between representatives of Petitioner and DOT in Punta Gorda, Florida, on June 0, 1977. At the pro-construction conference, discussions were held which indicated that all embankment material for the two projects would come from the planned lake area as shown on the plans and specifications, and it was again pointed out to Petitioner's representative that the embankment material might be difficult to dry. Petitioner's job superintendent was present at the preconstruction conference, had read the soil notes concerning the affinity of the embankment material for retaining moisture, but made no further inquiry of representatives of DOT concerning the soil test results contained in the project plans. It is undisputed that DOT did not furnish petitioner the results of its laboratory tests, nor did DOT advise Petitioner specifically of the presence of montmorillonite.
Section 8-8.1, Florida Department of Transportation Standards Specifications for Roads and Bridge Construction, 1973, which was made a part of the contract between Petitioner and DOT, provides, in pertinent part, that:
Time is an essential element of the con tract and, as delay in the prosecution of
the work will inconvenience the public, obstruct traffic, and interfere with business, it is important that the work be pressed vigorously
to completion. Moreover, the cost to the Department of the administration of the contract, including engineering, inspection, and supervision, will be increased as the construction
period is lengthened . . . .
Section 8-7.1, of the aforementioned document further provides that:
The contractor shall perform fully, entirely and in accordance with the specifications, the work contracted for, within the contract time
specified in the proposal , or as may be extended in accordance with the provisions herebelow..
Section 8-7.3.2 of the Standard Specifications Provides that:
No allowance in contract time will be made for delay or suspension of the prosecution of the work when such delay is due to fault or negligence of the contractor.
Finally, Section 8-8.3 provides, in part, as follows:
(i) The Department may grant extensions of time during the prosecution of the work, as allowed under the Standard Specifications and special provisions for the work, regardless of the Contractor's delinquency status. If is incumbent upon the Contractor to request the Department for such extensions of time as he feels he is entitled to.
(j) The Department may recognize as grounds
for granting time extensions only those conditions
which are beyond the control of the Contractor and which could have not been reasonably
anticipated at the time bids were received.
Rains or other inclement weather conditions will be considered only when such are unseasonable, and provided that job records indicate that such weather was sufficient to cause serious obstacle prosecution of the work. (Emphasis added)
Section 8-8.3 of the Standard Specifications provides, in part, that:
A contractor may be declared delinquent because of unsatisfactory progress on a contract with the Department, when the contract
time allowed has not been entirely consumed, but the Contractor's progress at any check
period does not meet at least one of the following two tests:
The percentage of dollar value of completed work with respect to the total amount of
the contract is within ten percentage points of the percentage of contract time elapsed.
The percentage of dollar value of completed work is within ten percentage points of
the dollar value which would have been performed according to the contractor's own progress schedule previously approved by the Engineer. .
A contractor will be declared delinquent because of unsatisfactory progress on a contract with the Department, under the following circumstances:
The contract time allowed has been consumed and the work has not been completed.
The contract time allowed has not been entirely consumed, but the contractor's progress at any check period does not meet either of the two tests described under the paragraphs headed
(a) above.
As previously indicated, and as stipulated by both Petitioner and DOT, both the contract for the 3401 job and for the 3407 job were what is known in the industry as "calendar day contracts," as opposed to "work day contracts.' The first chargeable day under the contract under consideration in this proceeding was June 22, 1977. Petitioner's records show that the first day on which it had employees on the job site was July 11, 1977.
During the course of construction on the 3401 job, Petitioner was granted time extensions which increased the number of allowable days under the contract form the original 900 to 974. In addition the original contract amount of $5,884,703.32 was increased to $6,191,921.43.
As previously indicated, the first chargeable day under the contract for the 3401 job was June 11, 1977, and Petitioner's first day on the job site was July 11, 1977. During August, 1977, Petitioner began excavation on the main channel in the lake area, which area was to serve as the source for materials to be used of embankment on the 3401 and 3407 jobs. Placement of embankment
material on the 3401 job began on November 28, 1977, Petitioner was approximately 3 percent ahead of schedule on the 3401 project.
However, by September 2, 1979, Petitioner was 20.51 percent behind his progress schedule and 31 percent behind due to lapse of contract time, both of which parameters exceeded the 20 percent range allowed under the contract. Factoring in time extensions and additions to the original contract amount approved by the supplemental agreements dated November 25, 1979, Petitioner had completed approximately 55 percent of the work, although almost 89 percent of the contract time had elapsed, which placed Petitioner in default under the contract terms.
A preliminary Notice of Delinquency due to unsatisfactory progress on the 3401 job was sent by certified mail dated November 8, 1979, to Petitioner from DOT's representative. In response to this preliminary Notice, by letter dated November 21, 1979, Petitioner requested a 345 calendar day extension to the 3401 contract, asserting as reasons therefor, unsuitable embankment material and unusual amounts of rainfall on the job site.
A final Notice of Delinquency due to unsatisfactory progress on the 3401 job was sent by certified mail to Petitioner on November 30, 1979.
Petitioner timely requested a formal administrative hearing pursuant to Section 120.57(1), Florida Statutes, on these matters contained in the final Notice of Delinquency. Petitioner's request was sent by certified mail to the Secretary of DOT on December 6, 1979.
Both Petitioner and DOT have stipulated that the calendar days allowed under the terms of the 3401 contract and previously authorized extensions, expired prior to completion of the work.
It is abundantly clear from the record in this proceeding that one of the major contributing factors to Petitioner's exceeding the number of allowable contract days was difficulties encountered in the handling of embankment material due to the presence of the mineral montmorillonite. That mineral's high affinity for attracting and binding water made it extremely difficult to stabilize the subgrade of the roadway in order to meet DOT's compaction requirements. Petitioner's continuing efforts to sufficiently dry this material for use in the embankment did, in fact, cause some delays in completion of the work. This record does not establish, however, that this eventuality is something that could not have been reasonably anticipated by Petitioner, or that the presence of montmorillonite in the embankment material was the only cause of Petitioner's failure to timely complete work on the 3401 job. In fact, the above described contract provisions clearly warned Petitioner of the very problems that it eventually encountered with the use of this embankment
material--that is that the material was ". . . likely to retain excess moisture and may be difficult to dry." In fact, Petitioner's own expert witnesses, who were qualified to testify as experts in the areas of soil dynamics, soil analysis and engineering, geology, minerology and soil stabilization as it relates to highway construction, each testified that the inclusion of the above quoted language on the soil notes were sufficient notice to trigger further inquiry into the potential presence of "troublesome soils."
In addition, it further appears from the record in this proceeding that construction methods utilized by Petitioner on both the 3401 and 3407 jobs were not optimum for proper handling for the type of minerals found in the embankment material. For example, Petitioner placed these embankment materials
on the subgrade in layers so thick that proper aeration was not facilitated in order to properly dry the material. In addition, petitioner attempted to compact the already wet material with heavy equipment, further exacerbating difficulties encountered with excess moisture content. Furthermore, problems were caused by petitioner's failure to construct the embankment in a manner which would have prevented "ponding" of rainfall on the subgrade surface.
Naturally, by allowing "ponding" of rainfall on the embankment, the problems encountered with the embankment materials' high moisture retention were further aggravated.
Although Petitioner has asserted in this proceeding that it is entitled to time extensions due to unusually heavy rainfall in the area during tie course of construction on the 3401 job, the record in this proceeding is insufficient to conclude that "unseasonable" amounts of rainfall in fact occurred, or that weather conditions were in any way ". . . sufficient to cause serious obstacle to prosecution of the work." Petitioner did submit daily precipitation data compiled for various stations in the State of Florida, including Naples and Punta Gorda, for the period from June, 1977 through August, 1979. Other than this data, the only other evidence of record in this proceeding concerning rainfall amounts are the uncorroborated hearsay assertions of Petitioner's accountant that ". . . [n]ormal rainfall in the he area is somewhere around 52 inches," and that rainfall for the first calendar year of the contract was 8.73 inches "over normal." There is, in fact, no competent evidence in this record from which a determination can be made as to the average annual rainfall in the area of the project, or the amount, if any, by which actual rainfall in the first year of the contract exceeded the annual average. Although the Petitioner submitted data on rainfall experienced at two stations located five and twenty miles distant from the job site for the period June, 1977, through August, 1979, this date is both insufficient to allow a determination that rainfall, in fact, so contributed to delay in the prosecution of the work as to merit an extension of contract time.
Finally, it appears from the record in this Proceeding that substantial amounts of contract time were lost by petitioner due to delays in obtaining and placing lime rock on the job site, end by attempting to conduct work on the 3401 job and the 3407 job as one contract, despite the fact that these jobs were the subject of separate bids, separate contracts and differing time requirements.
Counsel for both Petitioner and DOT have submitted proposed findings of fact for consideration by the Hearing Officer. To the extent that such findings of fact have not been adopted in this order, they have been rejected as being either irrelevant to the issues in this cause, or as not having been supported by the evidence.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of, and the parties to, this proceeding. Section 120.57(1), Florida Statutes.
It is axiomatic that the party asserting the affirmative of an issue before an administrative tribunal had the burden of proving entitlement to the relief requested by a preponderance of the evidence. See, Balino v. Department of Health and Rehabilitative Services, 348 So.2d 759 (Fla. 1st DCA 1977); Agrico Chemical Company v. State, 365 So.2d 759 (Fla. 1st DCA 1978). Petitioner in this proceeding asserts that it is entitled to a 345 calendar day extension to
the contract on the 3401 job by virtue of the requirement that it used unsuitable embankment materials, and further due to the occurrence of unusual amounts of rainfall on the job site. As indicated in the he Findings of Fact section of this order, Section 8-8.3(j) Florida Department of Transportation Standard Specifications, 1973, provides as follows:
The Department may recognize as grounds for granting time extensions only those conditions which are beyond the control
of the Contractor and which could have not been reasonably anticipated at the time bids were received. Rains or other inclement weather conditions will be considered only when such are unseasonable, and provided that job records indicate that such weather was sufficient to cause serious obstacle
to prosecution of the work.
The record in this proceeding fails to establish that conditions leading to the time overruns experienced by petitioner on the 3401 job were beyond its control, or that petitioner could not have reasonably anticipated the difficulties which lead to the time overruns. To the contrary, the record in this proceeding clearly establishes that the contents of the contract documents were sufficient to put petitioner on notice of the very type of difficulties which were ultimately encountered with the handling of the embankment material. Finally, petitioner has failed to establish by the introduction of competent evidence that the occurrence of rainfall was such as to merit the granting of a time extension under the provisions of the contract documents.
