STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, ) STATE OF FLORIDA, )

)

Petitioner, )

)

vs. ) CASE NO. 84-1855

)

SHURLY CONTRACTING, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William J. Kendrick, held a public hearing in the above-styled case on January 21, 1985, at Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Reynold Meyer, Esquire

Department of Transportation

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32301

For Respondent: Diann Criss, President

Shurly Contracting, Inc. Post Office Box 15267

West Palm Beach, Florida 33406 PRELIMINARY STATEMENT

This case raises the issue of whether Respondent, Shurly Contracting, Inc., should be declared delinquent on a contract awarded by Petitioner, Department of Transportation, because the work was not completed within the time allowed by the contract. Respondent asserts that it was delayed in the performance of the contract by factors beyond its control and, therefore, was not delinquent.

At final hearing Petitioner called Alan Urgo as a witness. Petitioner offered Exhibit 1, and it was received into evidence. Respondent called Shurly

E. Atkinson, vice president of Shurly Contracting, Inc., as a witness. Respondent offered Exhibits 1 through 12, and they were received into evidence. The parties offered Joint Exhibits 1 through 7, and they were received into evidence. The Hearing Officer was requested to take, and took, judicial notice of Section 337.16, Fla. Stat., Chapters 14-22 and 14-23, F.A.C., and Sections 8-

1. and 8-8.3, Standard Specifications for Road and Bridge Construction, 1982, Department of Transportation, which documents were marked Hearing Officer Exhibits 1, 2, and 3, respectively.

   
   

   Petitioner and Respondent have submitted proposed findings of fact and conclusions of law. The parties' proposed findings and conclusions have been

   reviewed and considered. To the extent the parties' findings of fact were consistent with the greater weight of the evidence, or could be modified to conform to the greater weight of the evidence, they have been adopted in this Recommended Order. To the extent the parties' findings of fact could not be modified to conform to the greater weight of the evidence, or were subordinate, cumulative, immaterial or unnecessary, they have been rejected.

   
   

   FINDINGS OF FACT

   
   

   1. By written agreement dated July 26, 1983, Petitioner, Department of Transportation (Department), awarded Respondent, Shurly Contracting, Inc., a contract (State Project No. 86000- 3543) to install traffic control systems along four arterial roads in Broward County, Florida. Respondent agreed to complete all necessary work within 70 calendar days.

      
      

   2. The contract further provided that:

      
      

      . . . the date on which calendar days will begin to be charged to the project shall be either (1) the 91st calendar day from the issuance of the initial notice to begin work or (2) the date on which the Contractor actually begins work, whichever date is the earlier.

      
      

      By virtue of this provision, the contractor was granted 90 days "procurement time" within which to procure the needed equipment and personnel to complete the contract.

      
      

   3. On August 24, 1983 the Department issued to Respondent the initial notice to proceed. Consequently, the first chargeable day under the terms of the contract was November 23, 1983. Respondent commenced work December 5, 1983, the 13th day of the agreed 70 calendar day completion period.

      
      

   4. On April 24, 1984 the Department advised Respondent of its intention to declare Respondent delinquent on State Project No. 86000-3543 because the work had not been completed within the contract time. Respondent timely requested a Section 120.57 hearing. Respondent's request was forwarded to the Division of Administrative Hearings and assigned Case No. 84-1855.

      
      

   5. On August 10, 1984, 251 days after the contract period commenced and

      108 days after the Department formally advised Respondent of its delinquency, the Department conditionally accepted Respondent's work, subject to certain minor deficiencies. Despite demand, Respondent failed to cure the deficiencies. Therefore, on November 13, 1984 the Department started to charge additional contract days against Respondent. Respondent's work received final acceptance on December 21, 1984, 290 days after the contract period commenced. 1/ Accordingly, Respondent exceeded the contract time by 220 days.

      
      

   6. At final hearing Respondent asserted that it was unable to complete the project within the allotted time because of trouble shooting necessitated by crushed or missing conduit, rain days, heavy traffic associated with the "tourist season," and an error in the Department's plans.

   7. The "Construction Diary" and "Engineer's Weekly Summary," (Joint Exhibit 5), reflect nine trouble shooting days and seven rain days associated with this project. Respondent was not charged for these trouble shooting and rain days, and it was not charged with any days associated with the error in the Department's plans.

      
      

   8. Respondent received a copy of the diary and summary each week, and never took exception to it. At the hearing Respondent presented no evidence that it had experienced more than nine trouble shooting days or seven rain days. Respondent also failed to present any evidence that it was required to expend more time than the Department had allowed because of the error in the Department's plans.

      
      

   9. Respondent's suggestion that traffic associated with the "tourist season" was a cause of its failure to timely complete the project is unpersuasive. Such seasonal traffic is not an unforeseeable occurrence. It happens with predictable regularity. Further, Respondent offered no evidence to demonstrate how such traffic impeded its work, or what amount of time was lost because of such traffic. Even assuming Respondent was totally unable to work during "the season," which was clearly not the case, it would still have exceeded the contract period by 100 days.

      
      

   10. Respondent's "excuses lack substance. Respondent failed to complete the contract within the agreed time because of poor management, lack of supervision, lack of qualified help, and failure to employ the proper equipment to accomplish the project.

       
       

       CONCLUSIONS OF LAW

       
       

   11. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

       
       

   12. Section 337.16(1), Fla. Stat., provides:

       
       

       A contractor shall not be qualified to bid when an investigation by the department discloses that such contractor is delinquent on a previously awarded contract, and in such case his certificate of qualification shall be suspended or revoked.

       (a) A contractor is 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. Unsatisfactory progress shall be determined in accordance with the contract provisions.

       
       

   13. Rule 14-23.01(3)(c), F.A.C., provides in pertinent part:

       
       

       . . . The following issues may be considered by the Department of Transportation in determining whether a contractor is entitled to additional contract time:

       * * *

       2. 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.

       
       

   14. The evidence establishes that Respondent failed to complete its work within the time allotted by the contract. Respondent's failure to complete the contract on time was not occasioned by factors beyond its control. Respondent failed to make a diligent effort to complete the job on time or in an expeditious manner.

Accordingly, it is

RECOMMENDED that Respondent, Shurly Contracting, Inc., be declared delinquent on State Project No. 86000-3543, and that its certificate of qualification be suspended for two hundred twenty (220) days.

DONE AND ENTERED this 4th day of April, 1985, at Tallahassee, Florida.

WILLIAM J. KENDERICK

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904)488-9675

FILED with the Clerk of the Division of Administrative Hearings this 4th day of April, 1985.

ENDNOTE

1/ The Department did not charge Respondent for the period August 10, 1984 to November 13, 1984. If the Department had charged Respondent for those days, 385 calendar days would have been consumed by Respondent in fulfilling a project it had agreed to complete in 70 days.

COPIES FURNISHED:

Reynold Meyer, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32302

Diann Criss, President Shurly Contracting, Inc. Post Office Box 15267

West Palm Beach, Florida 33406

Paul A. Pappas, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301

Docket for Case No: 84-001855

Orders for Case No: 84-001855