v. ) CASE NO. 92-1592
Respondent. )
Pursuant to notice, a formal hearing was held in this case on April 9, 1992, in Tallahassee, Florida, before the Division of Administrative Hearings, by its designated Hearing Officer, Diane K. Kiesling.
For Petitioner: Reynold D. Meyer
Genie L. Buckingham Assistant General Counsels Department of Transportation
For Respondent: Colby F. Clark and
Debbie Clark Roberts, Pro Se Clark Construction Co., Inc.
The issues are whether Clark Construction Co., Inc., (Clark) is delinquent due to unsatisfactory progress being made on the bridge construction project State Project No. 61530-3601, and if so, whether Clark's Certificate of Qualification should be suspended.
The Florida Department of Transportation (DOT) presented the testimony of Steven J. Benak, Aubrey Stephen Graves, and John Shaw. DOT's Exhibits 1-5 were admitted in evidence.
Clark presented the testimony of Debbie Clark Roberts, John Shaw, Harold R. Bush, Jimmy Franklin Glass, and Colby Clark. Clark's Exhibits 1 and 2 were admitted in evidence.
The transcript of the proceedings was filed on April 27, 1992. The parties' proposed recommended orders were to have been filed on May 5, 1992,
because Section 337.16(1)(b), Florida Statutes (1991), requires that the Recommended Order be issued within 15 days after the hearing (which was interpreted by DOT to mean 15 days after the parties filed their proposed orders). By a Stipulated Request for Extension of Time, the time for filing proposed orders was extended to May 8, 1992. The extension was granted in the absence of the assigned Hearing Officer and was based on Clark's retaining of counsel for the preparation of Clark's proposed recommended order. Hence, the time for filing this Recommended Order was extended to May 26, 1992.
All proposed findings of fact and conclusions of law have been considered.
A specific ruling on each proposed finding of fact is made in the Appendix attached hereto and made a part of this Recommended Order.
Immediately prior to the entry of the Recommended Order, a temporary injunction was entered by Judge Steinmeyer of the Circuit Court of the Second Judicial Circuit, staying the administrative proceeding. That stay was appealed and was lifted by order of the First District Court of Appeal on July 7, 1993.
This Recommended Order was entered immediately after the District Court's Order was filed.
DOT is an agency of the State of Florida responsible for the construction and maintenance of roads designated as part of the State Highway System.
Clark is a road and bridge construction company located in Dozier, Alabama, and certified to bid on DOT contracts.
On January 23, 1991, Clark submitted its bid on DOT Project No. 61530- 3601 for the construction of two adjacent bridges (Holmes Creek Bridge and Holmes Creek Relief Bridge) located in Washington County, Florida.
On April 4, 1991, DOT and Clark entered into a contract for this project. The construction on the project was to take 400 contract days.
On December 8, 1991, DOT advised Clark of its intention to declare Clark delinquent for unsatisfactory progress on the project.
The contract required Clark to submit a construction schedule for approval by DOT.
Under its approved construction schedule, Clark anticipated that it would commence its pile driving activity on the tenth day of the contract. Clark also proposed beginning the superstructure 40 days after beginning the substructure.
The contract provides in part as follows: 8-7.3.2 . . .
The Department may grant an extension of contract time when a controlling item of work is delayed by factors not reasonably anticipated or foreseeable at the time of bid. Such extension of time may be allowed only for delays occurring during the contract time
period or authorized extensions of the contract time period.
* * * Delays in delivery of materials or competent equipment which affect progress on a controlling item of work will be considered
as basis for granting a time extension if such delays are beyond the control of the Contractor or supplier.
* * *
8-8.2 Regulations Governing Suspension for Delinquency:
Under the relevant rule provisions, a contractor is delinquent when unsatisfactory work progress is being made under these conditions:
* * *
(3) The allowed contract time has not expired and the percentage of dollar value of completed work is 15 percentage points or more below the dollar value of work which should have been completed according to the approved working schedule for the project. After falling 15 percent behind, the delinquency continues until the percentage points of the dollar value of completed work is within five percentage points of the dollar value of work which should have been completed according to the approved working schedule for the project.
The contract required Clark to procure pilings for the project from a certified prestressed concrete manufacturer. The concrete mix design used by the prestress manufacturer had to be approved by DOT before construction could begin.
At the time Clark prepared its bid, there were no preapproved prestressed concrete manufacturers in Florida or Alabama in the reasonable vicinity of the project.
In preparing its bid, Clark contacted Sherman International (Sherman), a prestressed concrete manufacturer with headquarters in Birmingham and a plant in Mobile, Alabama.
Immediately upon being awarded the contract, Clark notified DOT that Sherman would be its prestress supplier.
Sherman had experience in fabricating prestressed products for states other than Florida and therefore believed it would not have a problem meeting Florida's certification requirements.
The certification process requires inspection and approval by DOT officials of the manufacturer's equipment, material suppliers, plant operations, concrete mix, etc.
The certification process also involves the production and pouring of test batches which must be reviewed by DOT officials who note problems with the product and direct resolution of the problems.
The certification process involves a minimum of 28 days to allow the test batches to cure.
After Sherman went through two unsuccessful 28-day curing periods in its effort to meet DOT approval, it retained an expert more familiar with DOT procedures and requirements and was finally able to obtain DOT approval on July 10, 1991.
DOT's district engineer recognized that Clark reasonably would have anticipated that Sherman would be approved without delay.
Neither Sherman nor Clark had reason to anticipate the approval of Sherman would take an extended length of time. Due to the delays in the approval of Sherman, Clark was unable to begin pile driving until August 14, 1991, the 98th day of the contract.
Under the contract, piling had to be driven to depth until it met a specified bearing capacity, but still maintained the necessary height above ground to support the superstructure.
The work on the foundation began by driving test piles. Once the test piles were driven, DOT was responsible for determining the order lengths for the piling. The order lengths were supposed to be long enough so that the piles would reach bearing and also maintain the specified height, above ground.
Immediately upon commencing pile driving, Clark ran into problems because the piles were not long enough to be driven to bearing. The piles which did not meet bearing had to be spliced and redriven until they reached bearing.
The contract contemplated that as many as seven splices would be required, 2 on the relief bridge and 5 on the creek bridge. The contract therefore identified splicing as an item for which the bidders were required to submit a unit price.
In fact, on the creek bridge, 43 of the 96 piles had to be spliced.
DOT was responsible for determining the additional pile lengths for the splices and it took DOT at least a week to make the determination once it realized a splice was required. Sherman had to manufacture the splices piecemeal as the orders came in to do so. Once manufactured, the pile splice had to cure for seven days then be shipped to the contractor. The contractor then affixed the pile splice to the original piling by the use of dowels and epoxy which had to cure for 48 hours.
Construction of the substructure consisted of driving the piles, splicing and pouring concrete caps on which the bridge superstructure would rest.
Before construction of the superstructure (decks) of the bridge could begin, pile caps had to be constructed.
It took anywhere from two weeks to two months between the time the parties discovered that a pile or group of piles would have to be spliced and the time the spliced pile could be redriven.
The pilings are constructed in clusters known as bents.
Every bent on this project required splicing and therefore, construction of every bent was delayed.
Before Clark could begin construction of the superstructure, it was necessary to have a consecutive series of bents completed including the caps.
Even though Clark anticipated that it would commence construction on the superstructure 40 days after beginning the substructure, Clark was unable to start on the superstructure until 92 days after it started the pile driving operations because of the delays caused by the excessive splicing.
Clark expected to be able to begin the superstructure on one end of the bridge while it was working on the substructure at the other end.
However, Clark's planned, efficient progress was impeded because of ongoing driving operations of spliced pilings. Clark could not pour the caps while pile driving was going on within 100 feet of the bent where caps were to be poured.
Clark continued on with its pile driving while it ordered splices for the previous bents.
As soon as Clark was able to pour caps it did so and as soon as there were a sufficient number of completed successive bents available, Clark began work on the superstructure.
Clark requested time extensions due to the delays, but the requests were denied.
Clark ultimately was delayed in the progress of its work due to the unanticipated pile splices which exceeded the estimated quantity by more than 800 percent.
DOT granted Clark nine additional contract days as the result of a supplemental agreement which did not include any additional time for the delays due to the excessive splicing.
At the time of the notice of delinquency, Clark requested a 45-day extension of time due to the splicing.
By a letter dated December 4, 1991, the DOT project engineer acknowledged that Clark was entitled to some time extension due to the splicing, but DOT proposed only a 9-day extension. In fact, no such extension was ever granted.
DOT determined Clark delinquent on day 210.
According to the engineer's weekly summary, on day 210, the percentage of the dollar value of completed work was 39.5 percent and the total allowed number of contract days was 403.
By DOT's own calculations, if Clark had been given the nine days proposed for the supplemental agreement and the nine days suggested in the project engineer's letter of December 4, 1991, the project would have only been delinquent by 17 percent.
It is not necessary for the trier of fact herein to determine the exact number of days which should have been granted for the pile splicing. It is enough to find that the 9 days suggested by DOT are inadequate and that the appropriate figure, based on the engineer's progress notes and reports, is at least twice that.
DOT's witnesses offered explanations of why Clark was entitled to no extension in contract days because of the pile splices. However, their suggestions was beyond the realm of credibility in light of the actual extent of work and time required. Credibility determinations being within the exclusive province of the Hearing Officer, it is determined that DOT's testimony regarding the reasons for DOT's refusal to extend the contract time to reflect the inordinate number of pile splices is simply not credible or entitled to any weight. Additionally, neither of the main DOT witnesses had adequate knowledge of this specific project.
If DOT had granted Clark an adequate number of days extension for the pile splices, that number plus the additional 9 days would result in an adjusted number of contract days of over 430.
If Clark were granted the appropriate number of additional contract days, the percentage of dollar value of completed work would be less than 15 percentage points below the dollar value of work to be completed according to the contractor's schedule. This is calculated as follows: 210/430=48.6 percent. (Actual work completed of 39.5 percent or uncompleted percent of total contract amount of 60.5 percent.) 60.5-48.6=11.9 percent.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the parties to and subject matter of these proceedings. Section 120.57(1), Florida Statutes.
Pursuant to Section 337.16(1), Florida Statutes, DOT 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."
Florida Administrative Code Rule 14-23.012 governs the determination of when 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 three circumstances exits. One of those circumstances is:
(3) For contracts where contract time allowed is 200 days or more, the allowed contract time has not expired and the percentage of dollar value of completed work is 15 percentage points or more below the dollar value of work which should have been completed according to the contractor's approved working schedule for the project. After falling 15 percent behind,
the delinquency shall continue until the percentage of dollar value of completed work is within five percentage points of the dollar value of work which should have been completed according to the contractor's approved working schedule for the project.
The manner in which DOT declares a contractor to be delinquent is provided by Rule 14-23.013, Florida Administrative Code. Unsatisfactory progress on the construction contract is determined in accordance with the contract provisions.
DOT has the burden of proving that Clark is delinquent in the progress of its work as alleged in the delinquency letter dated December 8, 1991. The delinquency must be due to factors within Clark's control and not due to the failure of DOT to fulfill its obligations under the contract. DOT failed to carry this burden.
The contract governs the exact procedure for the contractor to seek an extension of time. The contract states DOT may grant an extension of contract time when a controlling item of work is delayed by factors not reasonably anticipated or foreseeable at the time of bid. Extensions of contract time will not be given for delays due to the fault or negligence of the contractor.
Under the terms of the contract, it is concluded that Clark is entitled to a time extension for the inordinate number of pile splices. However, no extension of contract time can be granted if a delay in the supply of materials is due to a factor within the control of the contractor or the supplier.
Sherman's tardy delivery of acceptable materials does not excuse Clark from its delinquency. "It is well established that the mere failure or inability of the contractor to obtain specification material on time or in sufficient quantities to meet contract requirements does not excuse nonperformance." Appeal of Jo-Bar Manufacturing Corporation, ASBCA No. 11391, Par. 5949, decided October 31, 1966.
DOT's Standard Specifications for Road and Bridge Construction addresses late suppliers in Section 8-7.3.2:
Delays in delivery of materials or component equipment which affects progress on a controlling item of work will be considered as basis for granting a time extension if such delays are beyond the control of the Contractor or supplier. Such delays might be an area-wide shortage, an industry-wide strike or a natural disaster which affects all feasible sources of supply. In general, the Contractor shall furnish substantiating letters for a representative number of manufacturers of such materials or equipment clearly confirming that the delay in delivery was in no way the fault of the Contractor.
In this case, the delay in the manufacture and delivery of prestress concrete piling was completely within the control of the supplier, Sherman.
Appeal of Etlin Peterson Construction Company, IBCA No. 532-12-65, Par. 5906, decided October 20, 1966, dealt with a case where a contractor requested an extension of time for performance because a supplier was late in delivering steel. The contractor claimed that because it and the subcontractor were both small businesses, and the delay should be excusable because the contractor and subcontractor were without fault and the supplies were not procurable on the open market. The Board of Contract Appeals found that although the contractor and subcontractor were without fault, and although they both took their contractual obligations seriously, and made conscientious efforts to perform the contract on time, there was no showing "that the delays involved were unforeseeable to and beyond the control and without the fault or negligence of the suppliers with whom the orders for structural steel were placed." Id. at 27,402. Therefore, the Board denied the appeal of the contractor, refusing to grant any time extension.
Sherman's ignorance of the required specifications cannot excuse its delay in providing acceptable prestress concrete. Sherman's failure to timely perform its duties was a "normal business hazard" which Clark assumed, and it would not excuse the prime contractor from timely performance unless the difficulty resulted from an excusable cause under the contract. Appeal of Industrial Services and Engineering Co., 60-2 BCA, Par. 2701, decided July 28, 1960. Ignorance is not an excusable cause under the contract.
Further, the fact that Clark had talked to a representative of Sherman and had no reason to know that the prestress concrete would not be on time does not mean that Sherman's tardiness was "unforeseeable." In the Appeal of Emeco Corporation, ASBCA No. 4101, Par. 2300, decided August 4, 1959, a contractor could not make a delivery due to tooling and machine problems arising after the contract had begun. The Board of Contract Appeals found that the contractor had made arrangements with the suppliers of such definiteness that they could be reasonably relied upon, even though the contractor had discussions with the suppliers prior to bidding. Thus, it was found that the failure to perform did not arise out of causes beyond the control and without the fault or negligence of the contractor.
Clark has failed to prove that the late delivery in prestress concrete piling to the Project was (1) not foreseeable at the time of bid and (2) not due to the fault or negligence of Clark or its supplier for whom Clark is responsible. For these reasons, Clark is not entitled to a time extension on this issue.
The same cannot be said for the inordinate number of pile splices. Clark demonstrated that it was delayed by the excessive splices. The uncontroverted evidence showed that Clark proceeded with the work diligently. Because there were unanticipated splices in every bent, Clark could not proceed with construction of the superstructure until it had a sufficient number of consecutive bents completed. Clark could not pour caps for the bents as long as pile driving was going on in the vicinity. The substructure took longer than it would have but for the excessive splicing. DOT was exclusively responsible for the delays caused by the excessive splices because DOT erred in determining the order lenghts for the piling, which led to the inordinate number of splices.
DOT presented no credible evidence showing that Clark could have been performing other work that would have reduced the delay caused by the splicing.
Clark demonstrated that it is entitled to additional time which is more than sufficient to bring it below the 15 percent delinquency contemplated by the contract provisions.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the DOT enter a Final Order determining that Clark is not
delinquent and dismissing the delinquency determination against Clark Construction Co., Inc., on State Project No. 61530-3601.
DONE and ENTERED this 14th day of July, 1993, in Tallahassee, Florida.
DIANE K. KIESLING
Filed with the Clerk of the Division of Administrative Hearings this 14th day of July, 1993.
APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 92-1592
The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case.
Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Department of Transportation
Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Clark Construction Co., Inc.
Reynold D. Meyer Genie L. Buckingham
Assistant General Counsels Department of Transportation 605 Suwannee Street, MS-58 Tallahassee, FL 32399-0458
Mary Piccard, Attorney at Law Cummings, Lawrence & Vezina, P.A. 1004 DeSoto Park Drive
P.O. Box 589
Ben G. Watts, Secretary Department of Transportation Haydon Burns Building
All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.
