STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
BAXTER'S ASPHALT & CONCRETE, ) INC., )
)
Petitioner, )
)
vs. ) CASE NO. 87-4947
)
STATE OF FLORIDA, ) DEPARTMENT OF TRANSPORTATION, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to written notice a formal hearing was held in this case before Larry J. Sartin, a duly designated Hearing Officer of the Division of Administrative Hearings, on December 1, 1987, in Tallahassee, Florida.
The Petitioner, Baxter's Asphalt & Concrete, Inc. (hereinafter referred to as "Baxter's"), was represented by Joseph W. Lawrence, II, Esquire. The Respondent, the Department of Transportation (hereinafter referred to as the "Department"), was represented by Brant Hargrove, Esquire.
INTRODUCTION
Baxter's, a highway construction company, holds a certificate of qualification with the Department. By letter dated October 9, 1987, the Department notified Baxter's that Baxter's was delinquent in the progress of work on State Project No. 53010-3522 (hereinafter referred to as the "Project"), and that the Department intended to suspend Baxter's certificate of qualification. Baxter's requested a formal hearing to contest the Department's notice of October 9, 1987.
Prior to the commencement of the formal hearing, Baxter's filed a Motion to Dismiss Suspension Proceeding. The Department filed a Motion to Strike to which Baxter's filed a Response. The Motion to Dismiss was denied. The Motion to Strike was granted to the extent that Baxter's had challenged the contract specifications of the Project.
Following the commencement of the formal hearing, Baxter's made an ore tenus Motion in Limine. The Motion was denied.
The parties stipulated that the formal hearing was a de novo proceeding to determine whether Baxter's was delinquent within the meaning of Rule 14-23, Florida Administrative Code. The parties also stipulated to the order of presentation of the case
In support of its position, the Department presented the testimony of Charles Goodman, W. L. Anderson, Jr., Ken Sweet and Leland Gordon Wilkinson. The Department also offered 10 exhibits which were marked as "Respondent" exhibits and accepted into evidence.
Baxter's presented the testimony of James S. Huggart, Jr., David Sloan, H.
H. Barber and William D. Baxter. Baxter's also offered 21 exhibits which were marked as "Petitioner's" exhibits and accepted into evidence. Pages 10 through
14 and lines 1 through 15 on page 42 of the deposition testimony of Charles Goodman were also accepted into evidence. Finally, the deposition testimony of
L. Anderson, Jr. and Nolan Daniels was accepted into evidence.
The parties have timely filed proposed recommended orders which contain proposed findings of fact. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order or the proposed finding of fact has been accepted or rejected in the Appendix which is attached hereto.
ISSUE
Whether Baxter's is delinquent in the progress of the Project pursuant to Rule 14-23.001, Florida Administrative Code?
FINDINGS OF FACT
On January 21, 1987, the Department received bids on the Project. On March 6, 1987, the Department awarded the Project to Baxter's. The Project number is 53010-3522.
The Project consisted of the realignment of the intersection of U.S. Highway 90 and Russ Street in downtown Marianna, Florida. The Project involved approximately 500 feet of road surface at a congested intersection. The work on the Project had to be performed without shutting down the intersection to traffic. In addition to widening and resurfacing existing pavement, the Project entailed relocating storm sewers and other drainage structures, construction of a concrete retaining wall, curbs, gutters and sidewalks, replacement of traffic signals, landscaping and painting new markers on the road. Access to existing businesses had to be maintained during the period of the Project.
Pursuant to the specifications for the Project, the Project was to be completed within ninety (90) days (hereinafter referred to as the "90-day Period").
Almost two months after the Project was awarded to Baxter's the Department issued a notice to proceed. As required by the specifications for the Project, the Department informed Baxter's in the notice to proceed that the first day of the 90-day Period of the Project would begin on May 17, 1987.
At the time the notice to proceed was issued by the Department, the Department and Baxter's knew that certain telephone utilities work had be completed by Centel before work on the Project could begin. The Department believed, however, that the telephone utilities work would be completed before May 17, 1987, when it issued the notice to proceed.
By letter dated May 7, 1987, Baxter's requested vacation time for May 18, 1987, through May 31, 1987. The request was made because Baxter's was working on other jobs. The Department approved this request. After learning
that the telephone utilities work would not be completed Baxter's requested that the leave time be treated as delay time. This request was denied by the Department.
Approximately five to six days before May 17, 1987, the Department realized that the telephone utilities work which had to be completed before the Projects was begun would not be completed by May 17, 1987.
May 17, 1987, was the first chargeable day of the 90-day Period on the Project.
From May 18, 1987, through May 31, 1987, Baxter's was treated as being on vacation for purposes of the Project. Therefore, the running of the 90-day Period was tolled during this approved vacation time.
June 1, 1987, was the second chargeable day on the Project.
No work was performed on the Project during the first two weeks of June, 1987. Nor did Baxter's move any equipment onto the Project site during this period. Instead, Baxter's was performing other work at other locations during May, 1987, and the first two weeks of June, 1987.
The telephone utilities work which was to be performed before work on the Project began was completed June 9, 1987.
On June 16, 1987, Baxter's requested a ten day extension of time due to the delays caused by the failure of Centel to complete the telephone utilities work. Baxter's also requested additional time to mobilize [get its machinery and men ready to begin work on the site].
The twenty-four day extension of the 90-day Period requested by Baxter's was granted by the Department on July 30, 1987. The Department approved ten days for the telephone utilities delays on May 17, 1987, and June 1, 1987 through June 9, 1987 and fourteen days to allow Baxter's to mobilize. Fourteen days is a reasonable period of time for mobilization for the Project.
Baxter's did not actually report to the Project site until July 8, 1987. Prior to this time, Baxter's had been working on other jobs.
On July 15, 1987, a water line on the Project site broke. The time required to fix the water line, however, was insufficient to warrant approval of any extension to the 90-day Period.
On July 16, 1987, a gas service line on the Project site was broken. This line was not located where it was expected to be located before the Project was begun. This broken line caused a delay of seven-tenths of a day.
From July 22, 1987, through July 28, 1987, problems associated with utilities located on the Project site prevented work from being performed on the Project.
On July 29, 1987, there was a delay of two-tenths of a day.
From July 30, 1987, through August 6, 1987, the Department instructed Baxter's to halt any work associated with the concrete retaining wall for the Project. The delay, however, was caused by a question concerning the forms to be used in constructing the wall. The use of the these forms in the
construction of the wall was to take place at a location other than the Project site. No delay was actually caused, therefore, on the Project site with regard to other work to be performed.
In August, 1987, the Department performed an initial investigation of the Project consisting of a comparison of monthly estimates of the dollar amount of completed work on the Project and the dollar amount of the work that Baxter's had estimated would be completed in its projected work schedule for the Project. Based upon this review, Baxter's was more than ten percent behind schedule on the Project for the month of July, 1987. Baxter's did not meet at least one of the tests of Rule 14-23.001(3)(c)1, Florida Administrative Code.
By letter dated August 5, 1987, the Department informed Baxter's that it did not meet the ten percent requirement of Rule 14-23.001(3)(a), Florida Administrative Code. The Department informed Baxter's that it could request an extension of time or show why it was not delinquent.
On August 5, 1987, Baxter's filed a new projected work schedule. This work schedule was approved by the Department. This work schedule was requested because of the twenty-four day extension approved by the Department.
On August 10, 1987, Baxter's sent a letter to the Department in response to its letter of August 5, 1987. In Baxter's letter, Baxter's asked the Department if it had taken into account the twenty-four day extension of time the Department had approved on July 30, 1987, and indicated that it had sent a revised work schedule on August 5, 1987.
On August 13, 1987, the Department responded to Baxter's letter of August 10, 1987. The Department indicated that the revised work schedule had not cured the ten per cent delinquency. Despite these conclusions, the Department informed Baxter's that it would wait until information concerning work on the Project for August, 1987, was available to be sure that Baxter's was delinquent. The Department informed Baxter's in the August 13, 1987, letter:
Therefore, should you believe that there is justifiable reason for a time extension, you should submit that reguest as directed in my letter of preliminary notice.
Baxter's still failed to meet one of the two tests of Rule 14- 23.001(3)(c)1, Florida Administrative Code, by the end of August, 1987.
At the time the Department sent its letter of August 5, 1987, and its letter of August 13, 1987, the Department was aware that Baxter's had been granted a twenty-four day extension of time on the Project.
On August 19, 1987, Baxter's requested a twenty- one day extension of time on the Project due to the delays on the Project during July and August of 1987.
On August 26, 1987, the Department approved a seventeen-day extension for the Project. This extension of time was warranted because of the delays experienced on the Project on July 16, 1987, July 22, 1987 through July 28, 1987 and July 30, 1987 through August 6, 1987. See Findings of Fact 17-20. These delays resulted in the loss of sixteen days. Additionally, the Department awarded an additional delay day for July 29, 1987, which was a day which fell
between the two major delays experienced during the period of time in question. On September 1, 1987, Baxter's submitted a revised projected work schedule based upon the additional extension of time granted by the Department. The Department, therefore, waited until it had reviewed Baxter's progress on the Project during the month of September, 1987, before issuing a final notice of delinquency. Baxter's still did not meet one of the two tests of Rule 14- 23.001(3)(c)1, Florida Administrative Code, as of the end of September, 1987.
The Department granted a total of forty-one days of additional time for the Project. Therefore, the Department allowed a total of one hundred and thirty-one days for completion of the Project. Even when these extensions of time are taken into account, Baxter's did not meet one of the two tests of Rule 14-23.001(3)(c)1, Florida Administrative Code.
On October 9, 1987, the Department sent a Communication Terminal Message Sending Blank to Baxter's, indicating that a final notice of delinquency would be issued on the Project.
The final notice of delinquency was issued by letter dated October 9, 1987. In this letter the Department informed Baxter's that it had considered the information provided by Baxter's and had determined that work on the Project was still delinquent pursuant to Rule 14-23.001(3)(a), Florida Administrative Code.
By letter dated November 25, 1987, Baxter's informed the Department for the first time that it did not believe that the 90-day Period was a sufficient of period of time for the completion of the Project.
By letter date November 30, 1987, the Department informed Baxter's that the 90-day Period was an item included in the bid specifications for the Project and could, therefore, not be reconsidered.
As of the date of the formal hearing of this case the Project was in its one hundred and eighty-fifth day.
There was a 13 percent minority business goal for the Project.
In order to comply with the 13 percent minority business goal, Baxter's employed Coggins and Deermont as a subcontractor, a disadvantaged business enterprise. Coggins and Deermont was certified by the Department as a disadvantaged business enterprise.
Subcontractors had to be approved in writing by the Department prior to commencement of work by the
subcontractor.
Concrete and survey work was a logical choice for Baxter's to subcontract the minority business goal work to.
As part of its contract with the Department, Baxter's agreed that subcontractors would be treated as employees of the prime contractor. Baxter's knew that it was responsible to the Department for its subcontractors' work.
Coggins and Deermont was the primary reason for Baxter's failure to complete the project within the time required. Baxter's could have assisted Coggins and Deermont in completing its work, but the Department's rules do not
permit a prime contractor to perform the work of a minority business. Coggins and Deermont was not the only reason for delays on the Project. Some delays were also caused by Baxter's.
Baxter's could have attempted to replace Coggins and Deermont. In fact, Baxter's spoke to another minority business enterprise. Only one other subcontractor was checked with, however.
Contract time extensions for the Project were authorized when: a controlling time of work is delayed by
factors determined to be beyond the Contractor's control which could not be reasonably anticipated at the time bids for the project were received...
Time was of the essence for the Project.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the parties to, and the subject matter of, this proceeding. Section 120.57(1), Florida Statutes (1987).
Pursuant to Section 337.16(1), Florida Statutes (1987), the Department is authorized to suspend or revoke a contractor's certificate of qualification if the contractor is "delinquent on a previously awarded contract." A contractor is considered delinquent when "unsatisfactory progress is being made on a construction project or when the allowed contract time has expired and the contract work is not complete."
Rule 14-23.001, Florida Administrative Code, governs the determination of whether a contractor is delinquent on a previously awarded contract.
Pursuant to this Rule, a contractor is considered delinquent on a previously awarded contract if one of two circumstances exists:
Determination of Delinquent Status:
A contractor may be declared delinquent because of unsatisfactory progress on a contract with the Department, determined as follows:
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 10 percent points of the percentage of contract time elapsed.
The percentage of dollar value of completed work is within 10 percentage point of the dollar value which should have been performed according to the contractor's own progress schedule on
file with and approved by the Department.
A contractor shall be considered delinquent because of unsatisfactory progress on a contract with the Department under the following circumstances:
1. The contract time allowed has been consumed and the work has not been completed.
Rule 14-23.001(3), Florida Administrative Code.
The manner in which the Department declares a contractor to be delinquent is provided by Rule 14-23.001(3)(c), Florida Administrative Code:
Within 10 days of receiving a Notice of Delinquency, a contractor may submit a request for an extension of contract time to the Department of Transportation. The following issues may be considered by the Department of Transportation in determining whether a contractor is entitled to additional contract time:
Whether the contract time allowed was sufficient and reasonable. However, the question of sufficiency of the contract time will only be considered by the department in situations where the contractor prior to the expiration of 50 percent of the allowable contract time has notified the department that it considers the contract time to have been insufficient.
Whether the contractor was delayed in the performance of the job by factors beyond his control. It shall be an absolute defense to a charge of delinquency when the contractor can demonstrate that he has expended his best efforts in a diligent attempt to complete the job on time or in an expeditious manner, and was delayed through no fault on his part. A contractor who was delayed through no fault or neglect on his part will not be determined to be delinquent. However, a finding that a contractor did not have sufficient personnel, equipment and finances to complete a job in a timely manner shall be prima facie evidence that the contractor was at fault and therefore delinquent. In all proceedings to determine whether a contractor is entitled to additional time or is delinquent, the contractor
shall have the affirmative burden of proof to establish any defense allowable under this rule or the contract specifications.
Pursuant to the portion of the Department's rules quoted above, the Department notified Baxter's on August 5, 1987, that it was considered delinquent on the Project because of unsatisfactory progress based upon its failure to meet the test of Rule 14-23.001(3)(a), Florida Administrative Code. By letter dated August 10, 1987, Baxter's asked the Department if the twenty- four day extension of time granted by the Department on July 30, 1987, and the new projected work schedule submitted by Baxter's as a result of the extension had been considered by the Department. In fact the Department had already taken into account the twenty-four day extension of time but informed Baxter's by letter dated August 13, 1987, that it would consider the revised projected work schedule and its progress after August to determine whether Baxter's was still delinquent.
In its letter of August 13, 1987, the Department also informed Baxter's that if any extension of time was warranted that it should submit a request for an extension. By letter dated August 19, 1987, Baxter's requested an additional extension. This extension was granted in part on August 26, 1987. On September 1, 1987, Baxter's submitted another projected work schedule based upon the new extension.
The Department then waited until information concerning Baxter's work progress during September, 1987, was available to determine if Baxter's unsatisfactory progress had been corrected by the second extension. When it determined that it had not corrected the problem, the Department issued its final notice of delinquency on October 9, 1987.
Baxter's has raised a number of challenges to the procedures followed by the Department in issuing its final notice of delinquency. Those challenges are without merit. The manner in which the Department notified Baxter's that it was delinquent because of unsatisfactory progress on the Project was consistent with the Department's rules and Florida Statutes. Some of Baxter's arguments concerning the manner in which notice of the delinquency was given to Baxter's are discussed below.
First, Baxter's has argued that the Department improperly determined that it was delinquent on August 5, 1987, because the Department failed to take into account the twenty-four day and seventeen day extensions of time granted by the Department. The facts fail to support Baxter's argument concerning the twenty-four day extension. This extension had been taken into account when the preliminary notice was issued. As to the seventeen day extension, there is no requirement that the Department consider whether, as of August 5, 1987, Baxter's would be delinquent if the seventeen day extension had been approved on August 5, 1987. The evidence proved that Baxter's was delinquent in July, August, and September of 1987. Even when the two extensions of time are taken into account, Baxter's was delinquent.
Secondly, Baxter's has argued that the Department is estopped "to deny that Baxter's cured the delinquency." In support of this argument, Baxter's points to the fact that it asked the Department in its letter of August 10, 1987, to let it know if the Department considered Baxter's to still be delinquent and the Department failed to do so after approving the seventeen day extension. This argument overlooks the fact that the Department told Baxter's
in its letter of August 13, 1987, that the determination of whether Baxter's was delinquent would be made based on its work in August and, if it found that Baxter's was still delinquent, a final notice would be issued. The Department then told Baxter's that if it had any justifiable reason for a time extension, a request should be submitted. There was, therefore, no representation by the Department in the Department's August 13, 1987, letter that Baxter's progress was satisfactory, as argued by Baxter's. Nor have any of the other elements of equitable estoppel been proven to exist in this case. See Department of Revenue v. Anderson, 403 So.2d 397 (Fla. 1981).
Thirdly, Baxter's has argued that the final notice of delinquency of October 9, 1987, was not consistent with the requirements of Rule 14-23.001(4), Florida Administrative Code, which provides:
(4) Notice of Delinquency: Effective Date. Whenever a contractor is considered to be delinquent under the above provisions, the State Highway Engineer will give preliminary notice to the contractor by telegram and by certified or registered mail. The contractor shall not be declared delinquent before a period of 10 calendar days after mailing of the preliminary notice has elapsed. During this 10-day period, requests for time extension will be considered by the Department.
Upon expiration of the 10-day period following the preliminary notice of delinquency, if no extension of time or other consideration is deemed proper by the Department, the State Highway Engineer shall declare the contractor delinquent and notify him immediately by wire and certified or registered mail.
Baxter's argues that this rule "contemplates that the Department will promptly act on its delinquency charge once the 10 day period has expired." Baxter's argument ignores the fact that the Department must issue its final notice following the 10-day period only "if no extension of time or other consideration is deemed proper by the Department ..." In this case an extension of time was granted by the Department after its preliminary notice was issued. After granting this extension, the Department waited until Baxter's submitted its revised work schedule on September 1, 1987. The Department then waited until the end of September, 1987, to determine if the additional seventeen days and the revised work schedule had cured the delinquency. It was not until this extension and "other consideration" was complete that a final notice could be issued by the Department under Rule 14-23.001(4), Florida Administrative Code.
Finally, Baxter's has argued that the Department approved its progress on the Project subsequent to August 5, 1987. Then, when the contract time for the Project expired, the Department decided to rely on the preliminary notice of delinquency which already had been issued to declare Baxter's delinquent pursuant to Rule 14-23.001(3)(b), Florida Administrative Code. Pursuant to this Rule, a contractor is considered delinquent if the contract time expires and a project is not complete. Again, the evidence fails to support Baxter's
argument. The preliminary notice and the final notice of delinquency issued by the Department concerning the Project both refer to the 10 percent rule of Rule 14-23.001(3)(a), Florida Administrative Code.
In addition to Baxter's arguments concerning the Department's compliance with its rules in instituting the delinquency action, Baxter's has argued that it should not be considered delinquent because the 90-day Period was insufficient. Rule 14-23.001(3)(c)1, Florida Administrative Code, provides that the Department, in determining whether a contractor is delinquent, may consider whether the contract time allowed "was sufficient and reasonable." The Rule goes on to provide, however, that this question will be considered only if the contractor notifies the Department that it considers the time to be insufficient "prior to the expiration of 50 percent of the allowable contract time ..." Although Baxter's presented evidence with regard to the sufficiency of the allowable contract time, it failed to prove that the Department had notice that Baxter's considered the time to be insufficient. The only evidence presented by Baxter's was an alleged comment by an employee of Baxter's to an employee of the Department that the 90-day Period was not sufficient. There was no evidence that someone with the authority to speak on behalf of Baxter's ever informed the Department that Baxter's considered the time to be insufficient until November 25, 1987. More than 50 percent of the allowable time had expired before November 25, 2987.
Baxter's has argued that the Department had actual notice that the contract time was insufficient from the beginning of the Project. Although there may have been employees of the Department who believed that the contract time was insufficient, the evidence failed to prove that they knew that Baxter's considered the contract time to be insufficient. By bidding on the Project, proceeding to work on the Project and failing to inform the Department that it considered the time to be insufficient, it was reasonable for the Department to assume that Baxter's did not consider the contract time to be insufficient.
Baxter's has also argued that it was delayed by factors beyond its control and that the Department should have, therefore, granted it additional extensions of time and acted differently with regard to when the Project was to have begun. The evidence failed to support these arguments. Although the Department issued its notice to proceed on May 1, 1987, and the telephone utilities problems were not resolved until June 9, 1987, Baxter's was given an extension of time to cover all of this period of time except the period for which vacation time was taken. The extension allowed a sufficient period of time for Baxter's to mobilize.
Baxter's has suggested that it was required to use up its allowable vacation time because of the delays and, therefore, should be given be given an extension of time. The evidence simply did not support this contention. Baxter's took the vacation before it was known that the Project site would not be ready by May 17, 1987. Baxter's took the vacation because it was working on other jobs.
With regard to additional extensions of time, the evidence failed to prove that the Department should have granted any extensions of time other than the two extensions it did grant.
Finally, Baxter's has argued that "it expended its best efforts in a diligent attempt to complete the Project on time and was delayed through no fault on its part." Pursuant to Rule 14-23.001(3)(c)2, Florida Administrative Code, it is an absolute defense to a charge of delinquency if a contractor
proves "that he has expended his best efforts in a diligent attempt to complete the job on time or in an expeditious manner, and was delayed through no fault on his part."
In support of its argument, Baxter's indicates that the evidence proved that the Project was delayed because of the incompetence of Coggins and Deermont. There are two problems with Baxter's position. First, the evidence failed to prove that Baxter's was diligent in all respects in performing its obligations on the Project or that the Project was delayed through no fault or neglect on Baxter's part. The evidence did prove that Coggins and Deermont was responsible for some of the delays on the Project. The evidence also proved, however, that Baxter's was responsible for delays on the Project also. For example, telephone utilities work on the Project site was completed on June 9, 1987. Baxter's did not report to the site until July 8, 1987. No acceptable reason for this delay was given by Baxter's. Additionally, Baxter's did not make a sufficient effort to resolve the problems which were caused by Coggins and Deermont.
Secondly, pursuant to the contract for the Project, Baxter's was responsible for the work performed by its subcontractors, including Coggins and Deermont. Although Coggins and Deermont was selected by Baxter's to meet the minority business goal established by the Department, the Department did not impose the use of Coggins and Deermont on Baxter's. Nor did the Department in any way hold Coggins and Deermont out as qualified to perform the work it was hired to perform. All the Department did was to certify that Coggins and Deermont qualified as a minority business enterprise. Baxter's was therefore responsible for the actions of Coggins and Deermont and should have made some effort to correct any problems created by Coggins and Deermont.
Based upon the evidence presented in this proceeding, Baxter's is delinquent on the Project.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED a final order be issued finding Baxter's delinquent on the
Project.
DONE and ENTERED this 29th day of February, 1988, in Tallahassee, Florida.
LARRY J. SARTIN
Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 29th day of February, 1988.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-4947
The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted.
Proposed Finding Paragraph Number in Recommended Order of Fact of Acceptance or Reason for Rejection
Petitioner's Proposed Findings of Fact 1 1 and 2.
2 3-4 and 8.
3 14 and 34.
4 5.
6. Although it is true that Baxter's requested vacation time, the evidence failed to prove that it was requested because of the telephone utilities work. The last sentence is irrelevant.
The evidence failed to support this proposed finding of fact. Baxter's was already at another site and Baxter's did not request vacation time because of the telephone utilities work.
12. The second sentence is irrelevant. The third sentence was not proved.
14. The ten-day extension was for May 17, 1987, and the period from June 1, 1987, to June 9, 1987.
Irrelevant and not supported by the weight of the evidence.
15-20 and 27-28. The evidence did not prove that there were "numerous" utility conflicts or that the Department only recognized "some" of the delays.
15-20 and 28. Delays on July 16, and 22-28, 1987, warranted extensions. The evidence did not prove that delays on July 15, 17 or 29, 1987, warranted extensions. Nor did the problem with the gravity wall cause all work to stop. The last sentence is not supported by the weight of the evidence.
Not supported by the weight of the evidence.
23. Except for the first two sentences, these proposed findings of fact are not supported by the weight of the evidence.
21 and 22. The last sentence is not supported by the weight of the evidence.
31. Except for the first two sentences, these proposed findings of fact are not supported by the weight of the evidence.
16-20 Irrelevant or not supported by the weight of the evidence.
36. Coggins and Deermont was not "approved by the Department for performance of survey and concrete work."
Not supported by the weight of the evidence.
23 37.
24 38.
25 40.
26-29 Irrelevant or not supported by the weight of the evidence.
Respondent's Proposed Findings of Fact
1 | 30. |
2 | 22. |
3-5 | 21. |
6 | 25. |
7 | 26. |
8 | 31. |
9 | 29. |
10 | 3, 14 and 28. |
11 | 34. |
12 | 14. |
13 | 28 and 29. |
14 | 28. |
15 | 4 and 8. |
16-17 | 14. |
18 | 6. |
19 | 11. |
20 | 6. |
21 | 15-20, 27 and 28. |
22 | 36. |
23 | 35. |
24-25 | 39. |
26 | 40 and 41. |
27 | 41. |
28-30 | Hereby accepted. |
31 | 42. |
1 | 41. |
2 | Hereby accepted. |
COPIES FURNISHED:
Brant Hargrove, Esquire Department of Transportation Haydon Burns Building
605 Suwannee Street
Tallahassee, Florida 32399-0450
Joseph W. Lawrence, II, Esquire Post Office Box 589 Tallahassee, Florida 32302
Kaye N. Henderson, P.E., Secretary Department of Transportation Haydon Burns Building
605 Suwannee Street
Tallahassee, Florida 32399-0450 Attn: Eleanor F. Turner, M.S. 58
Thomas H. Bateman, III General Counsel
562 Haydon Burns Building Tallahassee, Florida 32399-0450
| Issue Date | Proceedings |
|---|---|
| Feb. 29, 1988 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| May 31, 1988 | Agency Final Order | |
| Feb. 29, 1988 | Recommended Order | Petitioner delinquent on road project. Certificate of qualification sus- pended. |
