STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, ) DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 86-3302

) WHITE CONSTRUCTION COMPANY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this cause on April 12, 1988, in Tallahassee, Florida, before William R. Cave, a duly designated Hearing Officer of the Division of Administrative Hearings. The issue for determination is whether the Respondent, White Construction Company, Inc., failed to satisfactorily complete the work on State Project No. 30010-3528, in Dixie County, Florida, within the original contract time plus any extensions of time thereto, and, if not, was such failure due to factors beyond Respondent's control.

APPEARANCES

For Petitioner: Robert I. Scanlan

Deputy General Counsel State of Florida,

Department of Transportation

562 Haydon Burns Building, Mail Station 58 605 Suwannee Street

Tallahassee, Florida 32399-0458

For Respondent: Samantha Boge Cummings

Cummings, Lawrence & Vezina, P.A. Post Office Box 589

Tallahassee, Florida 32302-0589 BACKGROUND

On June 5, 1986, R. D. Buser, State Construction Engineer, Florida Department of Transportation, gave Respondent a preliminary notice of delinquency, informing Respondent that progress of work on State Project No. 30010-3528 was considered unsatisfactory in accordance with Chapter 14-23, Florida Administrative Code and Article 8-8.3 of the Standard Specifications for Road and Bridge Construction, because progress of work did not meet the 20% criteria in 14-23.01(a), Florida Administrative Code. Respondent was allowed to request an extension of time. In response, on June 23, 1986, Respondent submitted a request for a time extension of 158 days. By letter dated June 26, 1986, Petitioner's Resident Engineer informed Respondent that additional information would have to be provided for the time extension to be evaluated.

No additional information was provided by Respondent, so by letter dated July 24, 1986, and by telegram, Petitioner informed Respondent that the determination of delinquency would become final and its qualification to bid would be suspended unless Respondent timely requested an administrative hearing. On August 13, 1986, Respondent filed a Request for Formal Hearing. However, because of settlement negotiations the Division of Administrative Hearings' file in this case was closed, but the case did not settle and upon remand by the Petitioner, the case was reopened on June 10, 1987. This case was consolidated with Case Nos. 86- 2200, 86-3247R and 86-3303. Settlement negotiations were again initiated and Case Nos. 86-2200, 86-3247R and 86-3303 were finally closed. Not being able to reach a settlement in this case, it proceeded to hearing.

In support of its determination of delinquency, Petitioner presented the testimony of Ronald G. Layfield and Bob Cannon. Petitioner's Exhibits 1 through

18 were received into evidence. Respondent presented the testimony of Nancy White Bennett, R. D. Buser, and James Miles Varner. Respondent's Exhibits 1, 5, 6, 8, 10, 12A, 12B, 15, 16, 17, 18, and 21 were received into evidence.

The parties submitted posthearing Proposed Findings of Fact and Conclusions of Law. A ruling on each proposed finding of fact has been made as reflected in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. On October 30, 1985, the Florida Department of Transportation (FDOT) received bids on State Project 30010-3528 (Project) which is not a federal aid project. The Project was posted for award to White Construction Company, Inc. (White) on December 9, 1985 and formally awarded to White on December 12, 1985. The Project was a typical resurfacing job that consisted of improvement to drainage structures; resurfacing of U.S. Highway 19 in Dixie County from the south city limits of Cross City northerly for approximately 8 miles, including the milling of the existing asphalt and replacing it with recycled asphalt; placing new pavement markings, placing new guardrails; and placing sod strips.

   
   

2. At the time bids were received for the Project, Columbia Paving was resurfacing U.S. 19 adjacent to the Project. Because Columbia Paving already had an asphalt plant set up adjacent to this Project, White knew it would have to submit a conservative bid in order to be the low bidder on the Project.

   
   

3. The contract required the Project to be completed within 205 calendar days. The bidders know the contract time limitations at the time bids are received. The number of calendar days established in the contract are calculated by multiplying the number of estimated work days by a factor of 1.825, which represents an allowance for one day per week for weather, weekends and holidays. The bid documents also give the contractor the time frame for award and execution of the contract, issuance of the notice to proceed, and the initiation of charged contract time.

   
   

4. White executed the contract on December 23, 1985, and FDOT executed the contract on January 2, 1986. Under the terms of the contract, a preconstruction conference was to be held soon after award of the contract, and the notice to proceed was to be issued within 30 days after execution of the contract by FDOT.

   
   

5. The preconstruction conference was held on January 2, 1986, at the FDOT Construction Office in Chiefland, Florida. None of White's subcontractors attended the conference. Judd Gilmer of White stated that White would not start work before April 1, 1986. At the preconstruction conference, there was no

   mention of any problem with obtaining an asphalt site. The notice to proceed was issued on January 31, 1986, which stated that contract time would start 61 days from date of the notice. The 60 day time period is allowed for the contractor to secure materials, secure aggregate, and to secure and set up an asphalt plant site. Although the contractor's progress schedule was required to be submitted within 30 days of the preconstruction conference, White did not prepare a progress schedule until June 4, 1986, some 65 days after the work was to commence on April 1, 1986, and approximately 5 months after the preconstruction conference.

   
   

6. By letter of January 2, 1986, White submitted its Sequence of Operations proposal which called for erection of concrete barriers, signs, and barricades necessary for construction of the southbound lane, with construction of the drainage structures to follow. The letter also stated White would obtain all permits necessary for operation of the asphalt plant. A Quality Control Plan, dated February 4, 1986, was submitted by White for the asphalt plant operations. The Plan stated an Aztec Drum Mix Asphalt Plant would be used for the project. A revised Quality Assurance Plan was later approved in July for the Chiefland batch plant.

   
   

7. The contract places responsibility for locating an asphalt plant site and obtaining all appropriate permits on the contractor. White took no action to look for or obtain an asphalt plant site prior to award of the contract. At the time of submitting bids on the project, and on the date contract time began to run, White had an asphalt plant set up in Chiefland which could have been used to build the project. White made a conscious business decision not to use the Chiefland plant site and decided on finding a closer plant site for the Project and bid accordingly.

   
   

8. White made little effort to secure a plant site between the award of the bid on December 12, 1985, and March 14, 1986, except for some oral agreement with a Mr. Crapps for the use of his property. Although White requested a zoning change on this property from the Dixie County Board of County Commissioners, which was approved on April 3, 1986, White never pursued a building permit for the asphalt plant on the Crapps property.

   
   

9. White entered into an asphalt plant site lease with Anderson Contracting Company on April 17, 1986, but as early as March 18, 1986, White had requested approval from the Department of Environmental Regulation to relocate its Chiefland plant to the site leased on April 17, 1986, from Anderson. The request was approved on May 9, 1986, but the plant site did not become available until May 16, 1986.

   
   

10. White's initial Quality Control Plan had called for the use of an Aztec drum plant, which is a portable plant which can be set up easier than the batch plant White had in Chiefland. At some point in time, White decided not to use the Aztec plant and chose to move the Chiefland plant to the job site and convert it to a recycling plant. The Aztec plant was then moved for use on another project. The normal time frame is 2-3 weeks to set up a plant and 3-6 weeks to get materials. Materials can be delivered to the site once the layout of the plant is established. It took White from May 16 to July 8 for White to get set up, a total of over 7 weeks. White did not begin any asphalt work until July 8, 1986, contract day 99.

    
    

11. Any delay in White's performance under the contract before or after May 16, 1986, other than the 46 days for which FDOT granted an extension, that resulted from White being unable to secure an asphalt plant site was within

    White's control. Therefore, White is not entitled to any further extension of time due to the delay in securing an asphalt plant and bringing the plant into operation.

    
    

12. Contract time began April 1, 1986. White's survey crews were present on the job site on June 10, 11, and 12, 1986, and signs were placed on June 17, 1986, but no actual work was done until July 2, 1986, calendar day 93. The first construction operation was milling performed by J.E. Hill Milling. Milling had to be done first to produce material for recycling into asphalt. The asphalt work was completed on November 5, 1986, contract day 219, but a 30- day curing period is required before the pavement markings and striping can be

    done. Paving markers were completed on January 7, 1987, contract day 282. Time was not suspended after completion of the asphalt work because drainage safety improvements were not finished. Traffic was impeded during concrete pours, with traffic restricted to one lane. There was insufficient evidence to prove that the contract time should have been suspended after the asphalt was finished and drainage work was in progress.

    
    

13. The bid document, which later comprised the contract, required White to subcontract at least 10% of the total contract work to a disadvantaged business enterprise (DBE) certified by FDOT as meeting DBE requirements. FDOT listed the area of work they performed but did represent that the DBE was qualified to perform the work.

    
    

14. White obtained several quotations from DBEs to perform drainage work on the Project but selected Hardan Construction Company (Hardan) who gave the lowest quote. White was neither familiar with Hardan, nor did White discuss Hardan's work with other contractors before using Hardan in the bid.

    
    

15. White had no contract with Hardan prior to time beginning to run on the contract. White had attempted unsuccessfully to contact Hardan by phone in March, 1986, and then in early April mailed a set of subcontract documents to be executed. White did not receive a response, so they once again tried to contact Hardan by telephone and after repeated attempts did reach someone who said the executed documents had been returned. After the documents were not received and unsatisfactory responses were made by Hardan, White sent a second set of contract documents on May 7, 1986. This was over a month after contract time began to run. At one point White was told that Hardan was going out of business, but the next day was told Hardan would do the work. This went on for several weeks.

    
    

16. Mr. Hardan came in person to White's offices on May 29, 1986, and signed the contract. A request to sublet was sent to DOT for approval. Hardan gave a date it would go to work, so construction signs were erected, but Hardan failed to show. Hardan was ultimately given a deadline to report to work, but once again failed to show.

    
    

17. On June 26, Nancy Bennett, Vice President of White, contacted Ronald Layfield, FDOT's Resident Engineer, concerning Hardan and was told to contact the FDOT's Minority Affairs Office in Tallahassee. Upon contacting the Minority Office that day was told how to terminate the DBE and how White must make good faith attempts to fulfill the DBE goal. On June 26, Hardan was notified by telegram that the contract was terminated.

    
    

18. After defaulting Hardan, White contacted a number of DBEs for quotes for the drainage work. White was familiar with the quality of work of these DBEs, but rejected their prices as being too high. One quote was received from

    J.E. Hill, which was already working on the project. White then contacted Carpio- Walker (C-W), who was being used by White as a DBE on a Broward County job. Negotiations went on for about a month before a contract was finally executed between White and C-W on July 24, 1986.

    
    

19. The prices in C-W's contract were basically the same as in Hardan's, except White had to furnish certain equipment and material at no cost. C-W was unable to assure completion within the contract time, so a provision was put in the contract that C-W was not responsible for liquidated damages. There was nothing in the contract telling C-W to do the work within the contract time or on a priority basis, nothing about minimum manpower, nothing about additional crews, and nothing about when to come to work. The contract did provide for White to assist in paying for overtime work, but there was no evidence any overtime was ever paid. Some time after August 6, 1986, White submitted a Request to Sublet form to FDOT to approve C-W. White was told it needed a revised Form 1, so on August 29th, White submitted the revised Form 1 to Tallahassee FDOT for approval. It was approved on September 8, 1986. White never requested approval from FDOT for C-W to start work before all forms were approved. FDOT did nothing to delay the substitution of DBE subcontractors.

    
    

20. There was no more delay than normal mobilization time before C-W went to work. C-W came on the job when they said they would be there. C-W first moved onto the project on September 15, 1986.

    
    

21. The DOT Resident Engineer encouraged White to do the drainage work early on in the project. There was sufficient good weather to complete the job within the original contract time. The job was especially dry during the initial months of the contract. However, once C-W moved onto the job, there were times that wet weather had an effect on the drainage work because the water had to be pumped down to work on the footings. The high water did not prevent the drainage work.

    
    

22. C-W normally had only one crew working on the drainage and they would not work on more than two culverts at a time. Nothing in White's contract prohibited work by a subcontractor with multiple crews. C-W's work was delayed by equipment breakdowns and manpower deficiencies some 20 days between September 15, 1986 and March 27, 1987, when the job was completed.

    
    

23. Although White gave Hardan the maximum opportunity to compete for, and perform on, the subcontract, and made a good faith effort to replace Hardan so as to fulfill the DBE goals, any delay suffered by White in fulfilling its performance under the contract that resulted from White being unable to secure Hardan's performance, and subsequently any delays that resulted from C-W's inability to perform due to rain, inadequate equipment or personnel or otherwise was within White's control which White failed to properly exercise. Therefore, White is not entitled to any extension of time on the contract for the problems encountered with Hardan or C-W.

    
    

24. FDOT issued a preliminary notice of delinquency on June 5, 1986. June 5, 1986 was the 66th of 205 contract days, which meant 32% of the contract time had expired, and at that point O% of the work had been done. On June 23, 1986, White requested a time extension of 158 days. The request sought additional contract time for the alleged delay of Dixie County in approving the plant site and for the failure of Hardan to go to work. White represented that Dixie County had taken no action on the plant site approval. June 23, 1986, was the 84th contract day. On June 26, 1986, Mr. Layfield requested further documentation on the time request and the search for the asphalt plant site. No

    response was received from White, so FDOT issued a final delinquency notice on July 24, 1986. Since on July 24, 1986, 56% of the contract time had expired with only 17% of the work completed, the percentage of dollar value of completed work was not within 20% of the percentage of contract time expired. Although the extension subsequently granted by FDOT would have changed the percentage of contract time expired, this change would not have brought the percentage of dollar value of completed work within 20% of the percentage of contract time expired.

    
    

25. On January 5, 1987, White submitted a response to Mr. Layfield's June 26, 1986 letter. White requested a time extension of 103 days for difficulty in obtaining a suitable asphalt plant site; 55 days for problems with DBE subcontractors; 39 days for rainfall and wet conditions; and 37 days for additional work, for a total of 234 calendar days. The original contract time expired on October 22, 1986, which was the 205th contract day.

    
    

26. On April 16, 1987, FDOT granted a time extension of 59 days. Forty- six days were allowed for the permit problem and was the contract time from April 1, 1986, contract day 1 to May 16, 1986, contract day 46, the date the site was made available to White. This gave White 106 days for setting up a plant; the 60 days built into the contract, plus the additional 46 days extension. Five days were granted for additional work. Eight days were granted for rain. Rain days were calculated by taking the total number of rain days beginning on day 1 of the contract time through the 251st day (205 plus 46) and subtracting the rain days occurring on weekends and 1 day per week for rain already built into the calendar day formula. There was no adjustment by FDOT to bring the 8 work days lost to calendar days. Converting work days to calendar days is accomplished by multiplying work days by a coefficient of 1.4. Using the coefficient of 1.4 takes into consideration the weekends (365 - 102 = 261.

    365 divided by 261 = 1.4).

    
    

27. Subsequent to the hearing, the parties agreed that an additional extension of 6 days should be added to the 59 days already granted for a total of 65 days. The extension granted by FDOT does not provide for rain days beyond the 46 days extension for locating the asphalt plant site.

    
    

28. Since essentially White was not on the job until the 93rd day and no work was lost due to rain or conditions caused by rain, the more accurate method of calculating any loss of time due to rain that is beyond White's control would be to start on the 93rd day. Starting on the 93rd day and ending on the 262nd day (205 plus 46, 5 and 6) there were 41 days of work lost due to rain, not counting rain on weekends. Subtracting 25 days for the days already built into the formula (25 weeks - 1 day per week) from 41 days lost, equal 16 days which when multiplied by the coefficient of 1.4 equals 22 days and should extend the contract 22 days. This 22 day extension, up to day 284, had 6 days of rain, minus 3 days for days already built into the formula equals 3 days. When the 3 days are multiplied by the coefficient of 1.4, it equals 4 days more than the contract should be extended. These 4 days produce no additional time for rain days.

    
    

29. Since this extension fell on January 13, 1987, the 288th day, White should be granted an additional 6 days for days White did not work during Thanksgiving, Christmas and New Years and was not given an extension for. This would bring the total contract time to 294 days.

30. The adjusted contract time expired on January 19, 1987. The project was recommended for final acceptance on April 8, 1987, contract day 373, for a difference of 79 days.

    
    

31. There was insufficient evidence to show that White did not have sufficient equipment, personnel, or finances to timely complete the Project.

    
    

32. A Final Order was entered by the Florida Department of Transportation on April 4, 1988, in the case of White Construction Company, Inc. v. Florida Department of Transportation, Case No. 87-3811, finding the White Construction Company, Inc., delinquent on Project Nos. 61989-3522 and 61080- 3523 and suspended White's Certificate of Qualification for 4 days.

    
    

    CONCLUSIONS OF LAW

    
    

33. The Division of Administrative Hearings has jurisdiction of the parties to, and the subject matter of, this proceeding pursuant to Section 120.57(1), Florida Statutes.

    
    

34. Section 337.16(1)(a)(b) and (c), Florida Statutes provides in pertinent part as follows:

    
    

    1. 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....

       1. 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.

          (T)he contractor's current certificate of qualification shall be

          suspended for the number of days that it is administratively determined that the contractor was delinquent even if the delinquency is cured during the pendency of the hearing proceeding.

          (c) In addition to the period of suspension required in paragraph (b), the department shall deny or suspend the certificate of qualification of such contractor in accordance with the following scheduled: If a contractor has been suspended twice within an 18-month period, the period of suspension shall be 3 months; if such contractor has been suspended twice within a 24-month period, the period of suspension shall be 2 months; and, if such contractor has been suspended 3 times within a 30-month period, the period of suspension shall be 4 months.

35. The FDOT in implementing the above statutory law adopted Chapter 14- 23, Florida Administrative Code and Rule 14- 23.001(3)(a)1.(b)1. and (4)(b), Florida Administrative Code provides in pertinent part as follows:

    
    

    (3) Determination of Delinquent Status.

    1. 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 be entirely consumed, but the contractor's progress at

       any check period does not meet at least one of the following two tests:

       1. The percentage of dollar value of completed work with respect to the total amount of the contract is within 10 percentage points of the percentage of contract time elapsed....

       * * *

    2. 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 had not been completed.

       * * *

    2. The contract time allowed has not

    been entirely consumed, but the contractor's progress at any check period does not meet either of the two tests described in subsection "a" above, modified to substitute

    20 percentage points in place of 10.

    * * *

    (4)(b) ...Where a contractor cures the alleged delinquency during the course of administrative proceedings, the Department may suspend the qualification to bid and disapprove as a subcontractor for the number of days the contractor is administratively determined to be delinquent.

    
    

36. A delinquency proceeding being akin to a disciplinary proceeding in that it is penal in nature, the burden is upon the agency to establish facts upon which its allegations of delinquency is based, Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (1 DCA Fla. 1977).

    
    

37. On July 24, 1986, the date of the Final Notice of Delinquency, the percentage of dollar value of completed work was not within 20 percentage points of the percentage of time consumed. Nor would it have been within the 20 percentage point criteria had FDOT made its calculations using a longer contract period taking into consideration any extension subsequently granted by FDOT that White was entitled to on July 24, 1986. Additionally, the contract time as extended under this order expired on January 19, 1987, which was 79 days prior to the Project being recommended for final acceptance on April 8, 1987, when time stopped running on the contract. FDOT has sustained its burden of proof to show that the Respondent is 79 days delinquent under the contract.

38. FDOT having established a prima facie case of delinquency, the burden shifts to the Respondent to establish facts that will demonstrate it has expended its best efforts in a diligent attempt to complete the Project on time or in a expeditious manner, and was delayed through no fault of its own. Rule 14-23.001(3)(c)2., Florida Administrative Code. The Respondent has failed to sustain its burden in this regard.

RECOMMENDATION

Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore,

RECOMMENDED that the Florida Department of Transportation enter a Final Order finding White Construction Company, Inc., delinquent in the prosecution of its work on State Project No. 30010-3528 for 79 days and that its Certificate of Qualification be suspended for 79 days, plus an additional three (3) months at the expiration of the 79 day suspension.

Respectfully entered and submitted this 2nd day of August, 1988, in Tallahassee, Leon County, Florida.

WILLIAM R. CAVE

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 2nd day of August, 1988.

APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 86-3302

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

respectively.

1. Adopted in Findings of Fact 26 and 27.

2. Adopted in Finding of Fact 24.

3. Adopted in Findings of Fact 27 and 30.

26.-29. Rejected as being an argument rather than a finding of

fact.

30. Adopted in Finding of Fact 31.

Specific Rulings on Proposed Findings of Fact Submitted by Respondent

1.-2. Adopted in Findings of Fact 1 and 5, respectively.

3. Adopted in Findings of Fact 26 and 27.

4.-5 Rejected as not being material or relevant to any determination in this proceeding.

6.-7. Rejected as not being material or relevant to any determination in this proceeding particularly in light of the asphalt being completed within the contract time plus the 46 day extension.

1. Rejected as not being supported by substantial competent evidence in the record.

2. The date the milling process began and the asphalt was completed is adopted in Finding of Fact 12. The balance of paragraph 9 is rejected as not being supported by substantial competent evidence in the record.

3. Rejected as not being relevant or material because there was a lack of substantial competent evidence in the record to show that the delays were not within White's control and thereby thru no fault of White.

11-12. Adopted in Findings of Fact 13 and 23, respectively.

1. Rejected as not being material or relevant to any determination in this proceeding since White's efforts in the early stages of the contract were "too little, too late".

2. Adopted in Finding of Fact 17.

15-16. Adopted in Finding of Fact 18 but clarified.

17-18. Adopted in Findings of Fact 19 and 20 but clarified.

1. The first sentence is adopted in Finding of Fact 21. The second sentence is rejected as not being supported by substantial competent evidence in the record.

2. Adopted in Finding of Fact 21.

3. The first sentence is rejected as being an admission a witness and not necessarily a finding of fact and is not supported by substantial competent evidence in the record. The second sentence, although a statement of what a witness agreed to, is supported by the record and adopted in Finding of Fact 21.

4. Adopted in Findings of Fact 24 and 25.

5. Rejected as not being material or relevant to any determination in this proceeding.

6. Adopted in Finding of Fact 24 but clarified.

7. Rejected as not being material or relevant to any determination in this proceeding.

8. Rejected as being an argument rather than a finding of fact.

9. Rejected as not being supported by substantial competent evidence in the record.

10. Rejected as being an argument rather than a finding of fact.

11. White's problems with obtaining performance by Hardan and White's responses to those problems are set out in

    Findings of Fact 14, 15, and 16 and do not reflect White's "extraordinary effort". The last 2 sentences are rejected in that there is no substantial competent evidence in the record to support the position that delays on the drainage portion were due to factors beyond White's control and therefore rejected.

12. Rejected as not being material or relevant to any determination in this proceeding.

13. Rejected as being argument rather than a finding of fact.

14. Adopted in Finding of Fact 29 with the exception that White did work on the day of Thanksgiving.

15. Rejected as not being material or relevant to any determination in this proceeding.

16. Rejected as not being material or relevant to any determination in this proceeding because without specific days of rain no determination of days loss can be calculated.

17. Adopted in Finding of Fact 26 with the exception of the coefficient of 1.825 which is rejected for reasons set out in Finding of Fact 26.

36.-37. Adopted in Finding of Fact 28 and 29 but clarified to use the correct coefficient and the correct work days loss due to rain or conditions caused by rain.

1. There is no numbered paragraph number 38.

2. Rejected as not Supported by substantial competent evidence in the record.

3. Adopted in Finding of Fact 32.

4. Rejected as not being material or relevant to any determination in this proceeding.

COPIES FURNISHED:

Kaye N. Henderson, P.E., Secretary Department of Transportation Haydon Burns Building, M.S. 58 Tallahassee, Florida 32399-0458

Attention: Eleanor F. Turner, M.S. 58

Samantha Boge Cummings, Esquire Post Office Box 589 Tallahassee, Florida 32302-0589

Robert I. Scanlan

Department of Transportation Haydon Burns Building, M.S. 58 Tallahassee, Florida 32399-0458

Thomas H. Bateman, III General Counsel

Department of Transportation Haydon Burns Building, M.S. 58 Tallahassee, Florida 32399-0458

Docket for Case No: 86-003302

Orders for Case No: 86-003302