vs. ) CASE NO. 90-1519BID
Respondent. )
W & J CONSTRUCTION CORP. )
Intervenor. )
Pursuant to notice, final hearing in the above-styled case was held on March 26 and 27, 1990, in Cape Canaveral, Florida, before Robert D. Meale, Hearing Officer of the Division of Administrative Hearings.
The parties were represented as follows at the hearing: For Petitioner: Emery H. Rosenbluth, Jr.
Ralph C. Losey
Subin, Shams, Rosenbluth & Moran, P.A.
P.O. Box 285
For Intervenor: John W. Foster
William D. Sublette Baker & Hostetler
P.O. Box 112
The issue in the case is whether Respondent has improperly rejected as late the bid proposal of Petitioner.
On February 21, 1990, Respondent awarded a construction contract to Intervenor. Petitioner timely filed a notice of bid protest and formal protest. On March 15, 1990, Intervenor filed a Petition for Intervention, which was granted.
23 exhibits. Respondent called no witnesses and offered into evidence three exhibits. Intervenor called nine witnesses and offered into evidence 17 exhibits. All exhibits were admitted excepted Intervenor's Exhibits 1-4, 7-10, and 13.
Following the hearing, Intervenor was allowed to file the deposition of Richard B. Lombroia and did so on May 4, 1990. The witness identified Intervenor's Exhibits 1-4 and; 18-19, which are now admitted.
Petitioner filed on April 2, 1990, a Motion For Leave to File Deposition Transcripts. By cover letter of the same date, Petitioner advised that Respondent did not object to the filing of the two transcripts, which were of the depositions of Mark Phillips and Andrew McCorkle. The motion is granted, and these transcripts are admitted as exhibits of Petitioner.
A transcript was filed on April 18, 1990. Each party filed a proposed recommended order. Treatment accorded the proposed findings is detailed in the appendix.
As the governing authority of the Canaveral Port District, Respondent is responsible for the operation of Port Canaveral. Respondent is headed by a Board of Commissioners, which consists of five elected officials. In descending order of authority, the next highest-ranking officials are the Executive Director (or Port Director), Deputy Executive Director (or Deputy Port Director), and six directors who are responsible for such things as operations and marketing. At all material times, Joe Lapolla served as the Deputy Executive Director and Director of Engineering.
Respondent was organized pursuant to Chapter 28922, Laws of Florida, Special Acts of 1953. Article XVII of the Special Act provides:
Section 1. No contract shall be let by the Port Authority for any construction,
improvement, repair, or building . . . when the amount to be paid shall exceed
$10,000 unless notice thereof shall be advertised at least three (3) times
calling for bids upon the work to be done or the goods, supplies or materials toe be purchased by the Port Authority, and in each case the bid of the lowest responsible bidder shall be accepted, unless the Port Authority may, in its discretion, reject all bids.
* * *
On or about January 26, 1990, Respondent issued the "Contract Manual for Construction of Cruise Terminal #5 Building" ("ITB"). The ITB informs bidders:
Sealed proposals will be received by the undersigned at the office of the Canaveral, Port Authority, 200 George King Blvd., P.O. Box 267, Cape Canaveral, Florida 32920 for construction of Cruise Terminal #5 Building and Site Work until 2:00 o'clock p.m., February 19, 1990 at which time and place they will be publicly opened and read aloud.
* * *
The Owner reserves the right to reject any or all proposals with or without cause, to waive technical errors and informalities, and to accept the proposal which in his judgement best serves the Owner.
The Canaveral Port Authority By:
Barbara Smith
The ITB states:
The award of the contract, if it is awarded, will be to the lowest sum of all base bid items by a responsible bidder whose qualifications indicate the award will be to the best interest of the Owner and chose proposal shall comply with the requirements of the Contract Documents and does cot exceed the funds available. . . . In no case will the award be made until all necessary investigations have been made into the responsibility of the low bidders and the Owner is satisfied that the bidders are qualified to do the work . ITB, P. IB-3.
The above-quoted announcement was duly published in the Florida Today Newspaper on January 15, 22p and 26, 1990. The advertisement timely informed all bidders of the contents of an addendum to the ITB, changing the bid opening date to 2:00 p.m. on February 16, 1990, rather than February 19
Other addenda to the ITB were issued. One was issued as late as the morning of the bid opening.
Seven contractors submitted bids on the Cruise Terminal project. In addition to Petitioner and Intervenor, the other bidders were Miorelli, Mark Arnold, Foley, Metric, and Butler.
The persons delivering the bids for Petitioner, Intervenor, Miorelli, Mark Arnold, and Butler testified at the hearing. The Metric representative testified by deposition. Each bidder representative arrived at Respondent's office building at which the bids were to be opened well in advance of 2:00 p.m. Each representative entered the building through the front door, which leads to a lobby in which a receptionist sits.
The receptionist informed five of the six bidder representatives that they should deliver their bids to her in the lobby and, at least four of the six representatives, that the lobby clock was the official clock. The same or another receptionist told the Mark Arnold representative that the clock in the Commission Room was the official clock. The Commission Room, which is where the bids were opened, is located elsewhere in the building.
At the time in question, there was no significant discrepancy between the clocks in the lobby and Commission Room. Unlike the other bidder representatives, who synchronized their watches with the lobby clock, the Mark Arnold representative synchronized his watch with the Commission Room clock. The Mark Arnold and Miorelli representatives testified that they both delivered their bids at 1:59:50 p.m. As noted below, the two bids were submitted almost simultaneously, so there is no significant difference between the two clocks.
After synchronizing their watches, the bidder representatives contacted their offices, by car phonies or other means, to get updated bid amounts and subcontractors. The last few minutes before submitting a bid is frenetic because subcontractors are calling in last-minute bids to the contractor, which must determine the best prices and relay the updated information to the bidder representative at the site of the bid opening. The representative must then complete the bid forms with the bid prices and names of subcontractors.
At about 1:55 p.m., Mr. Lapolla and Barbara Smith, who is Assistant Secretary to the Board of Commissioners, were in the Commission Room preparing for the bid opening. Ms. Smith had brought with her bid proposals that had already been delivered to the receptionist in the lobby. Mr. Lapolla was in charge of the bid opening in his capacity as Director of Engineering, not Deputy Executive Director.
By 1:56 or 1:57 p.m., Mr. Lapolla and Ms. Smith were joined by Bud McMann, who is Respondent's Director of Operations. They sat together at a table in the front of the Commission Room with the spectators' seats occupied by bidder representatives and other interested persons.
At 1:57 p.m., the Butler representative delivered her bid proposal to the table in the Commission Room. Within a few seconds after receiving the Butler bid, Mr. Lapolla checked on the bid proposals that had already been delivered to the table. Each proposal consisted of a set of two envelopes, which, although sealed, bore the name of the bidder on the outside of the envelopes. He saw proposals from only three bidders
Knowing that a large number of bidders had picked up copies of the ITB, Mr. Lapolla was disappointed by the low number of proposals that he had received. The three proposals were from bidders with which he was unfamiliar. In particular, he was expecting still to receive proposals from Miorelli and Metric. Metric was the contractor that had won a contract for construction of the waterside portion of the Cruise Terminal.
In fact, the Metric bid proposal was one of the proposals already received. As set forth below, the proposals of Intervenor, Mark Arnold, Miorelli, and Petitioner were, in that order, the last proposals to be delivered to the table. Most likely, in the confusion of the final two to three minutes before the opening of the first bid, Mr. Lapolla hastily looked at the envelopes and failed to notice that one was marked "Metric."
The realization at 1:57 p.m., or a few seconds thereafter, that he might not have received all of the bids on the Cruise Terminal project prompted Mr. Lapolla to decide to open first the bids of a different project. Respondent had advertised that, at the same time and place, bids would be opened for a much smaller project involving work on an office building. The office building project was entirely unrelated to the Cruise Terminal project. Respondent often set bid openings for more than one project at the same time and place.
Mr. Lapolla decided to open the office building bids first in order to allow time for bids or bidders "hung up at the front desk."
It was Mr. Lapolla's understanding that, given the language of the ITB and advertisement, a bid delivered to any full-time employee in the building prior to 2:00 p.m. would be timely. The decision to open first the office building bids did not necessarily signify a decision to accept late bids because Mr. Lapolla was correct in his understanding. Under the facts of this case, a bid could be timely submitted to the receptionist in the front lobby at 1:59:55 and not be delivered to Mr. Lapolla until after 2:00 p.m.
In opening the office building bids first, Mr. Lapolla intended only to allow timely but "hung up" bids to get to the Commission Room, not to allow late bids to be submitted.
Meanwhile, in the parking lot of the building, Intervenor's representative hung up on his office 1:57 p.m. After adding information to his proposal, he left his truck and proceeded to the lobby. The receptionist told him that Ms. Smith had already picked up the proposals and taken them to the Commission Room where they were going to be opened.
Intervenor's representative immediately jogged from the lobby along the side of the building to the exterior entrance to the Commission Room. He entered the Commission Room and delivered his bid proposal to the table at 1:59:,15 p.m.
As Intervenor's representative was running from the lobby to the Commission Room, the Miorelli representative approached the lobby, bringing his proposal to the receptionist. Although Intervenor's representative shouted to him to take his bid to the Commission Room, not the lobby, Miorelli's representative continued to the lobby, as the receptionist had instructed him earlier.
The Miorelli representative reached the lobby at 1:59:30 p.m. This creates a discrepancy between his account of time and that of Intervenor's representative, who probably left the lobby by no later than 1:59 in order to reach the Commission Room at 1:59:15. However, the discrepancy is immaterial and suggests, at most, that Intervenor's bid was delivered to the Commission Room perhaps as late as 1:59:40, but in any event still well in advance of 2:00 p.m.
The Mark Arnold representative arrived in the lobby just after Intervenor's representative and just before Miorelli's representative. When the Miorelli representative arrived on the heels of the Mark Arnold representative, the receptionist quickly ran both of them to the Commission Room. They delivered their proposals to the table at 1:59:50 with the Mark Arnold proposal delivered first.
As the Commission Room clock approached 2:00 p.m., Mr. Lapolla announced, "It's two o'clock. Let's start opening bids." He added that he would first be opening the bids of the office building project. He did not state that the bidding was closed for either project.
As Ms. Smith opened the first office building bid at 2:00 p.m., the only Cruise Terminal bid proposal not yet on the table was that of Petitioner. In fact, Petitioner's bid was not yet in the building at this time.
Petitioner's representative hung up on his office at 1:59 p.m. He testified that he reached the lobby at 1:59:15, but this is impossible. The Miorelli and Mark Arnold representatives reached the Commission Room at least four minutes before Petitioner's representative. But they did not reach the lobby until 1:59:30, or, according to Petitioner's representative, fifteen seconds after he reached the lobby.
In fact, Petitioner's representative did not enter the lobby until 2:03:30 p.m., at the earliest.
Guided by the receptionist, Petitioner's representative did not enter the Commission Room until 2:04 p.m., at the earliest. He laid his bid proposal on the table while Mr. Lapolla was busy reading the office building bids.
No one was recording the time at which bids were delivered to the table. A certain amount of confusion prevailed, as suggested by Mr. Lapolla's failure to realize that he already had received the Metric bid. Additionally, Ms. Smith was performing a task unfamiliar to her, and Mr. McMann, who was recording the bids, was performing the task normally done by Ms. Smith. Under the circumstances, it is clear that Mr. Lapolla was unaware, when Ms. Smith opened Petitioner's bid and Mr. Lapolla read it, that the bid was late.
There was testimony that the Commission Room clock was determined, during the following week, to be two to three minutes faster than official time, as kept by the U.S. Naval Observatory. This testimony is irrelevant because the comparison is not timely and the time kept in the building was official, as it was reasonably accurate and not tampered with. Even if "official time" were relevant and three minutes slower, however, Intervenor's representative would have entered the lobby at no earlier than 2:00:30 p.m. and still would have been late.
At no earlier that 2:10 p.m., Mr. Lapolla announced that he was ready to begin opening bids on the Cruise Terminal project. He did not announce that the time for submitting bids on the Cruise Terminal project was closed.
Mr. Lapolla then opened and read all seven bids, including Petitioner's bid. He read the bids by reading the bidder's name and the amount bid, except in the case of Miorelli. Miorelli had failed to enclose a required bid bond. Reading the amount of the Miorelli bid, Mr. Lapolla noted that it lacked a bid bond, but took no further action to disqualify Miorelli or reject the bid.
At the conclusion of the reading of the bids, Petitioner's bid was the lowest at $8,188,000. Intervenor's bid was the second lowest amount at
$8,288,000. Mr. Lapolla announced that Petitioner was the "apparent low bidder." Respondent later determined that, but for the lateness of Petitioner's bid, its proposal was responsive and it was responsible.
When Petitioner's representative identified himself in the audience, Intervenor's representative, recognized him as the man who had arrived at 2:04
p.m. After contacting his office, Intervenor's representative told Mr. Lapolla of this fact and protested any award to Petitioner.
The architect's last estimate for the project, which was made in August, 1989, had been $6,200,000. The immediate concern among Respondent's employees was the cost of the project. The Assistant Director of Engineering Contacted the President of Petitioner's Florida Division later in she afternoon of February 16 and asked him to come over the following Monday, February 19, and discuss ideas to reduce the cost of the project.
At the February 19 meeting, Mr. Lapolla stated that he would be recommending to the Board of Commissioners that they reject all bids and rebid the project due to the amount by which it was over budget. The lateness of Petitioner's bid was discussed as a secondary matter.
The Board met on February 21 and considered, at the end of a long agenda, the Cruise Terminal project. The Board determined that Petitioner's bid was late and Intervenor's bid was timely. The Board concluded that they did want to rebid the project and did not want to accept a late bid. Respondent thus announced its intent to award the contract to Intervenor. Petitioner then timely filed a notice of protest and written formal protest.
Respondent has no written rules or policies governing bidding procedures. Until about five yearns ago, the Board opened all bids. Mr. Lapolla has handled about five to ten bid openings annually for Respondent for a total of about $25 million. However, neither he nor Respondent has previously encountered a late-bid situation. The Cruise Terminal project is the most expensive single project that Respondent has undertaken. Industry custom is to reject late bids without opening them.
The Board has delegated little authority to Mr. Lapolla in the bidding process. In particular, the Board has retained the authority to determine whether a bid is, responsive and a bidder responsible. The Board has also retained the authority to determine whether to award a contract based on a late bid.
Mr. Lapolla's authority is limited to accepting the bids and presenting them to the Board, with his recommendation, for final action. Specifically, he was authorized to read the clock, start opening bids at the appointed time, read the bids, and announce the apparent low bidder. He is also responsible for developing whatever factual record the Board requires for deciding whether to award a contract to a particular bidder.
There was no evidence that the decision of the Board to award the Cruise Terminal contract to Intervenor was based on illegality, fraud, oppression, or misconduct or that it was arbitrary or capricious. Undoubtedly, the fact-finding process was flawed. Most significantly, it resulted in the misidentification of the Metric and Miorelli bids as late. However, the process
culminated in the correct findings that Petitioner's bid was late and Intervenor's bid was timely. Although not advised of their legal right to accept a late bid, the Commissioners clearly wanted to exercise their right to reject late bids in order to avoid establishing a poor reputation in the construction industry.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter. Sections 120.53(5) and 120.57(1), Florida Statutes.
Provided no bids have been opened, a public body may waive, as a minor irregularity, the lateness of a bid. Hewitt Contracting Company, Inc. v. Melbourne, Regional Airport Authority, 528 So. 2d 522 (Fla. 5th DCA 1988). Nothing in this case, however, suggests that a public body must exercise this discretion and accept all such late bids.
Petitioner's bid was the lowest but late. Among timely bids, Intervenor's bid was the lowest. The sole question in this case is whether Respondent properly rejected Respondent's bid as late.
The facts do not support Petitioner's claims of waiver and estoppel. First, the acts, omissions, representations, and omitted representations of Mr. Lapolla cannot bind Respondent so as to require it to accept the late bid because Mr. Lapolla lacked sufficient authority. Second, even if he had such authority, the acts, omissions, representations, and omitted representations do not constitute waiver or estoppel.
Industry custom is to refuse late bids without opening them. However, there is no Florida case law, providing that, as a matter of law, when a bid is opened, the public body thereby waives its right to reject the bid as late. Although, in general, the opening of a bid may be a factor relevant to this determination, it is not determinative and, under these facts, not even relevant.
"Waiver is the intentional or voluntary relinquishment of a known right, or conduct which infers [sic] the relinquishment of a known right." Taylor v. Keno Chemical & Mfg. Corp., 465 So.2d 581, 587 (Fla. 1st DCA 1985). In opening Petitioner's bid, Mr. Lapolla was unaware that it was late and thus was unaware of the right of Respondent to reject the bid. Assuming Mr. Lapolla's authority to make the waiver, he could not do so because he would have been giving up a right that was unknown to him.
Moreover, Mr. Lapolla lacked the authority to make a waiver in any event. Respondent retained broad authority and delegated little discretion to Mr. Lapolla in, the bidding process. This allocation of authority was apparent to the bidder representatives in Mr. Lapolla's handling of the Miorelli bid, which lacked a bid bond. The absence of a bid bond is a material variance because it gives a bidder a substantial advantage over the other bidders. Cf. Robinson Electrical Co., Inc. v. Dade County, 417 So.2d 1032 (Fla. 3d DCA 1982)(cashier's check instead of required bid bond not material variance). It requires no more discretion to reject a bid with a material variance than it does to reject a bid containing only a blank piece of paper. Yet, Mr. Lapolla felt constrained merely to note the absence of the bid bond and leave it to the Board of Commissioner to reject formally the Miorelli bid.
On the other hand, waiving the minor irregularity of lateness demands the exercise of considerable discretion. An actual choice exists in this case. Further, the Board believed that the wrong choice would adversely affect Respondent's reputation in the construction industry.
A representative apparently without the authority to reject a bid incapable of acceptance does not appear to have the authority to make a choice of some importance to Respondent where a choice in fact exists. His authority in fact extended no further than opening the office building bids first. Under these circumstances, Mr. Lapolla could not waive, on behalf of Respondent, the minor irregularity of lateness.
Petitioner also argues that Respondent is estopped from rejecting Petitioner's bid as late. This argument is unavailing because of Mr. Lapolla's lack of authority. Even in the case of estoppel, the acts or representations of the representative of the public body must be authorized. Greenhut Construction Company, Inc. v. Knott, 247 So.2d 517, 524 (Fla. 1st DCA 1971).
Ignoring the issue of authority, the facts of this case do not establish a case of estoppel. The elements of estoppel are:
"1) a representation by the party estopped
to the party claiming the estoppel as to some material fact, which representation is contrary to the condition of affairs later asserted by the estopped party;
a reliance upon this representation by the party claiming the estoppel; an
a change in the position of the party claiming the estoppel to his detriment, caused by the representation and his reliance
thereon." Id. at 524 (citing Quality Shell Homes & Supply v. Roley, 186 So. 2d 837, 841 (Fla. 1st DCA 1966)).
The acceptance of the late bid was not a representation of fact that was contrary to the of affairs later asserted by Respondent. Likewise, there affairs later asserted by Respondent requirements of reliance and change in position are unsatisfied. Clearly, no act, omission, representation, or omitted representation by any representative of Respondent could have had any impact on the lateness question. Petitioner's bid was late, even in the lobby, through no fault of Respondent. Petitioner's effort's following the bid opening provide no basis for estoppel. Petitioner was only the "apparent low bidder." As such, Petitioner knew that it could only claim a tentative victory until the Board meeting on February 21. Moreover, within a few minutes of the ,announcement that it was "apparent low bidder," Petitioner, knew that its bid had been challenged as late. Under these facts, Petitioner could not create an estoppel through its subsequent efforts to win the bid at the Board meeting.
Petitioner also challenges the award on the basis of illegality, fraud, oppression, or misconduct. A public body may not select a bid through "illegality, fraud, oppression, or misconduct." Liberty County v. Baxter's Asphalt & Concrete, Inc., 421 So.2d 505 (Fla. 1982). There was no evidence of any such matters in the Cruise Terminal bidding process.
The Cruise Terminal bidding process was no model public procurement with respect to planning or execution. Serious flaws existed as to the identification of where bids were to be delivered, what time was official, the documentation of when bids were received, and the lack of coordination among Mr. Lapolla, Ms. Smith, Mr. McMann, and one or more receptionists. Nonetheless, it is possible to determine from the record that Intervenor's bid was timely, Petitioner's bid was late through no fault of Respondent, Respondent did not waive the minor irregularity of lateness nor was it estopped from rejecting Petitioner's bid as late, and the award was not the result of illegality, fraud, oppression, or misconduct.
The fact-finding efforts following the bid opening and preceding the Board meeting were conducted by persons understandably preoccupied by the amount by which the low bids exceeded the project estimate. Even so, thin "investigation" inspires little confidence. Incorrectly identifying, as late the Miorelli and Metric bids, the process, perhaps serendipitously, led to the correct conclusions as to the timeliness of Intervenor's bid and lateness of Petitioner's bid. Most important, however, there was no evidence of illegality fraud, oppression, or misconduct tainting the process.
RECOMMENDED that the Canaveral Port Authority enter a final order dismissing the petition of Brice Building Company.
ENTERED this 14th day of May, 1990, in Tallahassee, Florida.
ROBERT D. MEALE
Division of Administrative Hearings this 14 day of May, 1990.
Emery H. Rosenbluth, Jr. Ralph C. Losey
Subin, Shams, Rosenbluth & Moran, P.A.
P.O. Box 285 Orlando, FL 32802
John W. Foster William D. Sublette Baker & Hostetler
P.O. Box 112 Orlando, FL 32802
Treatment Accorded Proposed Findings of Petitioner 1-11: adopted or adopted in substance.
12: rejected as irrelevant.
13-14: adopted.
15: rejected as unsupported by the greater weight of the evidence and recitation of testimony.
16: adopted in substance.
17-18: rejected as irrelevant.
19-23: adopted or adopted in substance.
24: rejected as unsupported by the greater weight of the evidence. Bids could be submitted anywhere in the building. No bidder for the Cruise Terminal project appeared before 2:00 p.m. with his bid in the lobby or anywhere else in the building, but did not deliver his bid before 2:00 p.m. at the table in the Commission Room.
25: adopted except as to the Mark Arnold representative. No evidence was presented as to the Foley and Metric representatives.
26: adopted in substance. The Butler bid, which was the third received, was apparently delivered by the Butler representative to the Commission Room table. 27-31: adopted or adopted in substance.
32: rejected as irrelevant and unsupported by the greater weight of the evidence.
33-34: rejected as unsupported by the greater weight of the evidence. 35: adopted.
36: first sentence rejected as unsupported by the greater weight of the evidence. Second sentence adopted.
37-40: adopted or adopted in substance.
41: first sentence adopted. Second sentence rejected as irrelevant. 42-45: adopted.
46: adopted except first clause of last sentence rejected as unsupported by the greater weight of the evidence and legal argument.
47: rejected as irrelevant. 48-50: adopted.
51-56 and 58: rejected as unsupported by the greater weight of the evidence, legal argument, and irrelevant.
57: first sentence adopted. Second sentence as unsupported by the greater weight of the evidence. In both cited portions of testimony, Mr. Lapolla testified to the effect that the Board, not himself personally, had the authority to waive a minor irregularity.
59-60: rejected as irrelevant.
61: adopted, although "official time" is irrelevant.
62-65 and 68-73: rejected as subordinate and irrelevant except that Respondent voted to award the contract to Intervenor.
66: rejected as unsupported by the greater weight or the evidence.
67: rejected as irrelevant and unsupported by the greater weight of the evidence.
74-76: rejected as irrelevant, unsupported by the greater weight of the evidence, and subordinate.
Treatment Accorded Proposed Findings of Respondent 1-17: adopted or adopted in substance.
18-19: rejected as subordinate.
20-21: adopted.
Treatment Accorded Proposed Findings of Intervenor 1-5: adopted or adopted in substance.
6: first sentence adopted as to the responsibility of Mr. Lapolla to make the
initial factual findings concerning lateness. Second sentence rejected as unsupported by the greater weight of the evidence. Third sentence adopted. 7: rejected as irrelevant and unsupported by the greater weight of the evidence.
8: rejected to the extent that the finding implies a difference between the lobby and Commission Room clocks.
9: adopted.
10: first sentence adopted. Remainder rejected as irrelevant. 11: adopted. 12: rejected as unsupported by the greater weight of the evidence. The Butler bid was delivered by the Butler representative to the Commission Room at 1:57 p.m.
13: first sentence rejected to the extent that the finding implies that receipt in the lobby was ineffective. Remainder adopted in substance.
14-19: adopted or adopted in substance.
20: adopted in substance except that Mr. Witek is an employee of Intervenor. 21: rejected as irrelevant.
22-24: adopted.
25-26: adopted except that the "official time" is Irrelevant. 27: first sentence adopted as to the responsibility of Mr. Lapolla to make the initial factual findings concerning lateness. Remainder adopted.
28: adopted as to the purpose of the meeting and decisions reached by Respondent. Remainder rejected as irrelevant.
29: adopted.
30: rejected as subordinate.
