STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
WHITE CONSTRUCTION COMPANY, INC., )
)
Petitioner, )
)
vs. ) CASE NO. 87-3811
)
FLORIDA DEPARTMENT OF )
TRANSPORTATION, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was conducted in this cause on September 28, 1987 and October 6, 1987, in Tallahassee, Florida, before William
Cave, a duly designated Hearing Officer of the Division of Administrative Hearings. The issue for determination is whether the Petitioner, White Construction Company, Inc., failed to satisfactorily complete the work on Job Nos. 61080-3522 and 61080-3523, in Washington County, Florida, within the original contract time plus any extensions of time thereto and, if not, was such failure due to factors beyond Petitioner's control.
APPEARANCES
For Petitioner: JOSEPH W. LAWRENCE, II, Esquire
Cummings & Lawrence, P.A. Post Office Box 589
Tallahassee, Florida 32302-0589
For Respondent: LARRY D. SCOTT, Esquire
Department of Transportation
Haydon Burns Building, Mail Station-58 Tallahassee, Florida 32399-0458
BACKGROUND
On May 18, 1987, R. D. Buser, State Construction Engineer, Florida Department of Transportation, gave Petitioner preliminary notice by telegram, confirmed by certified letter of same date, that Respondent considered Petitioner's progress of work on Job Nos. 6108-3522 and 61080-3523 to be unsatisfactory as determined under Rule 14-23, Florida Administrative Code and Article 8-8.3, Standard Specifications for Road and Bridge Construction, 1986. The Petitioner was given the opportunity to submit information to show that the Petitioner was not delinquent due to factors beyond Petitioner's control. In response to the notice, Petitioner, on June 3, 1987, submitted a time extension request for one hundred twenty five (125) days. After reviewing the request, Respondent granted nineteen (19) days which was not enough to remove Petitioner from a delinquency status. On August 7, 1987, Respondent notified Petitioner by telegram, confirmed by certified letter of same date, that Respondent's
determination of delinquency would become final unless Petitioner timely requested an administrative hearing. On August 17, 1987, Petitioner filed a Request For Formal Hearing, and this hearing ensued.
In support of its determination of Petitioner's delinquency, the Respondent presented the testimony of Donny Alford, J. T. Barefield, Robert B. Buser, Dalton Carter, Charles Goodman and Thomas S. Tuberville. Respondent's Exhibits
1 through 12 were received into evidence. Petitioner presented the testimony of Timothy Jones, Glenn Sevor and James M. Varner. The Petitioner read into the record portions of the depositions of Luther Maxwell White, L. G. Wilkinson and
J. Benak. Respondent offered the depositions in their entirety and ruling was reserved on Petitioner's objection. Having reviewed argument of counsel, the Petitioner's objection is overruled and the entire depositions of Luther Maxwell White, L. G. Wilkinson and S. J. Benak are received into evidence.
Subsequent to the hearing in this cause on October 19, 1987, the Respondent by a Supplemental Agreement granted Petitioner an additional five (5) calendar days of contract time. As a result of this action by the Respondent, Petitioner filed a Motion For Consideration of Newly Discovered Evidence, requesting that the undersigned consider this Supplemental Agreement as additional evidence.
Respondent filed a response to this Motion, but did not object to the granting of that Motion. The Motion is Granted, and the Supplemental Agreement shall be considered as evidence in this cause.
Subsequent to the parties filing their respective Proposed Findings of Fact and Conclusions of Law, Petitioner filed a Motion to Strike the Proposed Recommended Order of The Department of Transportation and as grounds therefor, alleged that Respondent did not timely file its Proposed Recommended Order in that the Certificate of Service reflected that the Proposed Recommended Order being served on Petitioner on November 23, 1987, whereas the envelope containing the order received by Petitioner reflected a postmark date of November 25, 1987. The records of the Clerk's office of the Division of Administrative Hearings reflect that the Respondent's Proposed Recommended Order was filed with the Division on November 23, 1987. Although Respondent failed to mail Petitioner's copy on the same day certified, there was no prejudice to the Petitioner. The Motion is DENIED.
The parties have submitted post-hearing 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
Upon consideration of the oral and documentary evidence adduced at the final hearing on September 28, 1987 and October 6, 1987, the following relevant facts are found:
Respondent, White Construction Company, Inc. (WHITE) is a contractor engaged in the highway construction industry and holds a current Certificate of Qualification with the Petitioner, Florida Department of Transportation (FDOT). The Certificate of Qualification entitles WHITE to bid on construction contracts to be awarded by FDOT. WHITE has been in the road construction business since 1950 and has performed several hundred road construction contracts of FDOT amounting to some $400,000,000.00.
On May 28, 1986, FDOT received bids on State Project Nos. 61080-3522 and 61080-3523 (Project). FDOT subsequently awarded the contract to WHITE for
performance of the work. The Project consisted of improvement to drainage structures, resurfacing of approximately 1.5 miles of roadway which included milling the existing asphalt and replacing it with a new structural course, and placing incidental handrail and roadway markings.
The contract specifications called for the completion of the Project in ninety-five (95) calendar days. Calendars days are calculated by multiplying the number of workdays required to complete the work by a coefficient of 1.825. The coefficient of 1.825 is derived by dividing the number of days in a normal year (365) by the number of actual working days in a year (200).
WHITE was awarded the contract on the Project on July 11, 1986 and was required to return the executed contract within twenty (20) days or be penalized one (1) day for each calendar day WHITE was late in returning the executed contract. WHITE returned the executed contract on August 5, 1986 or twenty-five
(25) days after being awarded the contract. As a result of returning the executed contract late, the number of days to complete the Project was reduced from ninety-five (95) to ninety (90) days.
Certain utilities belonging to the City of Chipley were in conflict with the drainage work to be performed by WHITE under the contract, but were to be removed prior to WHITE starting work on the Project.
As required, a Pre-construction Conference was held on August 7, 1986 concerning the Project, with representatives from FDOT, WHITE, WHITE'S subcontractor and Southern Bell present. The City of Chipley did not attend the Pre-construction Conference. One of the items discussed was the relocation of the City of Chipley's utilities that were in conflict with the drainage work to be performed by WHITE. At the time of the conference, it was not known if the utilities in conflict with the project had been relocated by the City of Chipley.
On August 26, 1986, WHITE'S Work Progress Schedule Chart was approved. The chart indicated that certain types of work would be performed concurrently, such as drainage structure work and subgrade base and surface work (milling).
At the time the chart was submitted, WHITE understood that the utility conflicts would be relocated prior to it commencing work, and had no knowledge of other utility conflicts discovered at a later time.
On November 3, 1986, WHITE moved onto the Project site and commenced work. The ninety (90) days for completion of the Project began to run on that date.
On November 3, 1986 when WHITE moved onto the Project site, the known utility conflicts had not be relocated. The first day of contract time WHITE began clearing and grubbing, and on the second through the fifth day of contract time (November 4 - 7, 1986) WHITE performed surveying work in preparation for the next controlling item of work - drainage structures. On the sixth day of contract time (November 8, 1986) the known utility conflicts had not been relocated by the City of Chipley as was contemplated by the contract.
Except in a piecemeal fashion, which would not be economical, WHITE was unable to proceed to the next controlling item of work after the drainage structures, the milling of the asphalt, until the utility conflicts were relocated and the cross drains installed.
On November 14, 1986, the 12th day of contract time, WHITE's subcontractor commenced work on the Project and from this date until January 12, 1987 worked twenty-seven (27) days on the Project.
On November 20, 1986, the 18th day of contract time, WHITE began unloading pipe, but was able to work only two (2) hours due to rain.
On November 21, 1986, the 19th day of contract time, WHITE completed unloading the pipe and began to lay pipe, but the discovery of an unknown utility conflict delayed laying pipe until December 16, 1986, the 37th day of contract time.
On November 22, 1986, the 20th day of contract time, WHITE moved off the Project, and did not return until December 16, 1986, the 37th day of contract time. WHITE worked the 16th and 17th of December, 1986, and on December 18, 1986, the 39th day of contract time, another utility conflict was discovered. WHITE performed no further work on the Project until January 12, 1987, when the utility conflict was resolved.
WHITE requested and was granted vacation time during November 27 through December 3, 1986 and December 24 through 28, 1986, and contract time was stopped for twelve (12) days.
WHITE, through no fault of its own, was unable to work on a controlling item of work for thirty-six (36) contract days which is equal to fifty (50) calendar days. Converting contract days to calendar days is accomplished by multiplying the contract days by the coefficient of 1.4. Using this coefficient takes into consideration the weekends (365-102 = 261. 365 divided by 261 = 1.4)
The subcontracted portion of the Project was eleven per cent (11 percent). Converting the twenty-seven (27) days worked by the subcontractor during this period to days chargeable to WHITE is accomplished by multiplying 11 percent times 27 days which equals 2.97 or 3.0 days.
By letter dated January 29, 1987, WHITE requested an extension of time of eighty-one (81) days, and as a basis for the extension alleged delays caused by rain or conditions related to rain, utility conflicts and conditions due to natural springs adjacent to the Project site.
The extension request was reviewed first by the Assistant Resident Engineer on the Project who recommended to the Resident Engineer the granting of a thirty-one (31) day extension which was calculated by granting thirty-five
(35) days for utility delays and subtracting four (4) days for time attributable to work done by the subcontractor during this period, but denying any time for delay caused by rain or conditions related to rain or conditions related to the natural springs adjacent to the Project site.
After reviewing the recommendation of the Assistant Resident Engineer, the Resident Engineer recommended to the District Construction Engineer that only a twenty (20) day extension be granted based on twenty-nine (29) days being affected and subtracting nine (9) days for work accomplished by the sub and prime contractor during this period.
The District Construction Engineer agreed with the State Construction Engineer, and recommended to the State Construction Engineer that a twenty-eight
(28) day extension be granted. Calculated by multiplying the twenty (20) day extension recommended by the Resident Engineer times the coefficient of 1.4 to convert to calendar days of contract time.
The State Construction Engineer concluded that forty (40) days of contract time had been affected, and without further explanation granted forty
(40) calendar days.
In none of the calculations did the engineers take into account the delays caused by FDOT's failure to require the City of Chipley to timely relocate the known utility conflicts prior to WHITE commencing work on the Project, thereby preventing WHITE from proceeding in an orderly sequence with the work as contemplated in its Work Progress Schedule Chart without any excuse for delay until the unknown utility conflicts were discovered on November 21, 1986. Likewise, without the unknown utility conflicts, WHITE could have worked the job in an orderly sequence (concurrently working on drainage structures and the milling aspect). However, not knowing where the next utility conflict might arise, WHITE was precluded from milling asphalt while working on drainage structures without subjecting itself to additional work and costs. On this basis, WHITE should have been granted a forty-seven (47) day extension (50 days for utility delays minus 3 days for work accomplished by subcontractor). This extension is arrived at by allowing WHITE thirty-six (36) contract days during the period of November 8, 1986 through January 12, 1987 while WHITE was unable to perform work on a controlling item of work under the contract, and converting those days to calendar days (36 X 1.4 = 50) and subtracting the three (3) days of work performed by the subcontractor during this period and chargeable to WHITE (50 minus 3 = 47).
By letter dated March 19, 1987, WHITE submitted a second time extension request for fifty (50) days. The request covered a period of time from January 12, 1987, through March 8, 1987, a period of eight (8) weeks. The reasons for the request were: delays due to rain and corresponding wet conditions; delays due to utility conflicts; and delays due to conditions caused by natural springs adjacent to Project site.
FDOT's personnel performed its customary analysis of WHITE's second- time extension request, and granted a time extension of eleven (11) calendar days. FDOT's review revealed that WHITE had been delayed nine (9) days due to weather, two (2) days due to utility conflicts, and no delays caused by the natural springs adjacent to Project site.
A review of the daily diaries reveal that work on the Project by WHITE was affected twenty-two (22) days by rain or conditions caused by rain and was affected five (5) days by utility conflicts. There were nine (9) days when rain stopped work on the Project, (1/15, 16, 21/87; 2/2, 5, 24, 25, 26, 27/87) but since approximately one (1) per week is accounted for in the coefficient used to calculate the calendar days of the contract, only one (1) day should be allowed. There were thirteen (13) days on which work on the Project was affected by conditions caused by rain. WHITE was dewatering due to excessive rainfall or natural springs adjacent to the Project site as follows: 1/19/87 - 1 day; 1/20/87 - 1/2 day; 1/22/87 - 1 day; 1/23/87 - 1/2 day; 1/26/87 - 3 hours; 1/27/87 - 5 hours; 1/28, 29, 30/87 - 3 hours each day; 2/18/87 - 2 hours; 2/23/87 - 0.7 of a day; and 3/3/87 - 1 day. On February 6, 1987, WHITE lost all day because it was too wet to work. The above calculates into eight and one- half (8 1/2) days of contract time. WHITE's work on the Project was affected on
five (5) days due to utility conflicts. They were as follows: 1/27/87 - 2 hours; 2/13/87 - 2 hours; 2/14/87 - 2 hours; 3/3/87 - 3 hours and; 3/4/87 - 6 hours. This calculates into two (2) contract days.
It is apparent from the calculations of FDOT that WHITE was not given credit for certain days when the controlling item of work was delayed due to rain or conditions due to rain. The correct amount of contract time should have been eleven and one-half (11 1/2) days which, when converted to calendar days, equals sixteen (16) days.
During the course of the work on the Project, a "rutting" problem was encountered in a section of the road involved in the Project whereby the road was gradually sinking. The "rutting" was apparently caused from improper backfilling of a trench which had been excavated earlier by a contractor performing work for the City of Chipley. The "rutting" was not the result of any work performed by WHITE on the Project.
Negotiations began between FDOT and WHITE regarding WHITE correcting the "rutting" problem on March 6, 1987, and continued until April 13, 1987, at which time FDOT and WHITE entered into a Supplemental Agreement whereby WHITE agreed to correct the "rutting" problem for a stated amount, and FDOT granted WHITE thirty-five (35) additional calendar contract days. It was also understood that WHITE would be allowed time for material acquisition. On April 23, 1987, WHITE was advised by FDOT that no additional contract time after April 27, 1987 would be considered. On April 27, 1987, WHITE began work on the "rutting" problem, and completed the work on the "rutting" problem on May 13, 1987.
On May 18, 1987, FDOT issued WHITE a Preliminary Notice of Delinquency notifying WHITE that the progress of work on the Project was considered by FDOT to be unsatisfactory.
On June 3, 1987, in response to FDOT's Preliminary Notice, WHITE submitted a written time extension request for the period of March 8, 1987 through May 24, 1987. The time requested was one hundred and twenty-five (125) days, and the reasons were: delays caused by rain and corresponding set conditions, settlement of "rutting" problems, and; a request for reconsideration of the days denied in the first two time extension requests. FDOT granted nineteen (19) calendar days of contract time for the negotiations of the "rutting" problem, and denied the balance of time requested. The nineteen (19) days were derived by calculating the number of days involved in negotiation, acquiring material and performing the work, and subtracting the thirty-five (35) days granted under the Supplemental Agreement.
During the period of time from March 20, 1987 through April 27, 1987, thirty-eight (38) calendar days of contract time, WHITE was precluded from working on any controlling item of work on the Project due to negotiations on the "rutting" problem and acquisition of materials to correct the "rutting" problem, and these days were not considered by FDOT in making its decision to grant the work in correcting the "rutting" problem under the Supplemental Agreement. Therefore, WHITE is entitled to the full thirty-eight (38) calendar days of contract or an additional nineteen (19) calendar days of contract time than was granted by FDOT.
Because problems arose in securing aluminum handrails that WHITE had no control over, FDOT suspended time on the Project from July 4, 1987 through August 23, 1987.
FDOT issued to WHITE a Final Notice of Delinquency by telegram on August 7, 1987, confirmed by a certified letter of the same date, informing WHITE that the notice would become final and WHITE's qualification to bid on FDOT projects would be suspended unless WHITE requested a hearing within ten
(10) days. Pursuant to this notice, WHITE requested an administrative hearing.
On October 19, 1987, FDOT granted WHITE an additional five (5) days of contract time for completion of the Project by Supplemental Agreement.
Based on FDOT's calculations, the contract time expired on May 28, 1987, the 195th day of contract time (the original 95 days, minus 5 days penalty, plus 40, 11 and 19 days of extension, plus 35 days under Supplemental Agreement).
Based on the findings herein, the contract time expired on July 3, 1987, the 231st day of contract time (the original 95 days, minus 5 days penalty, plus 47, 16 and 38 days of extensions, plus 35 and 5 days under the Supplemental Agreements).
On August 25, 1987, the 233rd day of contract time, the subcontractor began to erect the handrails and completed erecting the handrail on August 27, 1987, the 235th day of contract time.
The Project was conditionally accepted by FDOT on August 27, 1987, the 235th day of contract time, and time stopped running on the contract.
WHITE was four (4) days delinquent in completing the contract which was the result of the penalty imposed for failure to timely return the executed contract.
FDOT's inability to resolve the known and unknown utility conflicts and the rutting problem timely resulted in WHITE not being able to proceed with the work on the Project in an orderly sequence as anticipated by the Work Progress Schedule Chart. This required WHITE to move on and off the Project to work on other projects and resulted in the inefficient use of the allowable contract time, and should be considered when determining delinquency.
There was insufficient evidence to show that WHITE did not have sufficient equipment, personnel, or finances to timely complete the job.
CONCLUSIONS OF LAW
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.
Section 337.16(1)(a), Florida Statutes provided in pertinent part as follows:
A contractor is delinquent when...the allowed contract time has expired and the contract work is not complete....
Section 337.16(1)(b), Florida Statutes provides in pertinent part as follows:
...The 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 proceedings.
The FDOT in implementing the above statutory law adopted Chapter 14- 23, Florida Administrative Code and Rule 14- 23.0001(3)(b)1. and (4)(b), Florida Administrative Code provide in pertinent part as follows:
(3) Determination of Delinquent Status.
* * *
(b) A contractor shall be considered delinquent because of unsatisfactory progress on a contract with the Department under the following circumstances:
* * *
1. The contract time allowed has been consumed and the work has not been completed.
* * * (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.
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 S. 2d 349(1 DCA Fla. 1977). Although the agency failed to show the Petitioner to be forty (40) days delinquent, it has sustained its burden of proof by showing the Petitioner to be delinquent by four (4) days.
Upon the agency establishing a prima facie case of delinquency, the burden shifts to the Petitioner to establish facts that will demonstrate it has expended its best efforts in a diligent attempt to complete the job on time or in an expeditious manner, and was delayed through no fault of its own. Rule 14- 23(3)(c)2., Florida Administrative Code. The Petitioner has sustained its burden to show that it expended its best efforts under the circumstances to complete the job on time and that the delay was due to the circumstances under which the job proceeded and was not entirely the fault of the Petitioner.
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 the Petitioner, White Construction Company, Inc., not delinquent in its prosecution of the work on Job Nos. 61080-3522 and 61080-3523 and rescind its final notice of delinquency issued on August 7, 1987.
RESPECTFULLY SUBMITTED and ENTERED this 21st day of December, 1987 in Tallahassee, Leon County, Florida.
WILLIAM R. CAVE
Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 21st day of December, 1987.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-3811
The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case.
Rulings on Proposed Findings of Fact Submitted by the Petitioner
1. | Adopted in Finding of Fact 2. | |
2. | Adopted in Finding of Fact 1. | |
3. | The first sentence is adopted in Finding of Fact 3. | |
The balance of paragraph 3, although supported by | ||
creditable testimony in the record is neither material | ||
nor relevant since the project could have been | ||
completed timely without the utility delays, and | ||
adjustment of contract time has allowed for these | ||
delays. | ||
4. | The first and third sentences of paragraph 4 are | |
adopted in Finding of Fact 4. The balance of paragraph | ||
4 is rejected as not being material or relevant. | ||
5. | Adopted in Finding of Fact 9. | |
6.-9. | Adopted in Findings of Fact 9-14 and 16 but clarified | |
to make statements of fact rather than statements of | ||
witnesses' testimony as was sometime the case in | ||
Petitioner's findings set forth in paragraphs 6-9. 10.-11. | Adopted |
in Findings of Fact 28, 29, 31 and 32 but
clarified to make statements of fact rather than statements of witnesses' testimony as was sometimes the case in Petitioner's findings set forth in paragraphs 10 and 11, and also rejecting certain portions as not being material or relevant.
Rejected as not being relevant or material.
Rejected as not being relevant or material, especially since it was WHITE's responsibility to obtain the
handrail timely in the first place.
Adopted in Finding of Fact 33 but clarified, rejecting that portion concerning the ten days between June 26- July 3 and August 24 and 25, 1987 as being no fault of WHITE since it was WHITE's responsibility in the first place.
The first sentence is adopted in Finding of Fact 31. The balance of paragraph 15 is rejected as not supported by substantial competent evidence in the record.
Adopted in Findings of Fact 41 and 42.
Specific Rulings on Proposed Findings of Fact Submit by Respondent
Adopted in Finding of Fact 1.
Adopted in Finding of Fact 2.
Adopted in Finding of Fact 3.
Adopted in Finding of Fact 4 as clarified.
The first three sentences are adopted in Findings of Fact 7 and 8. The balance of paragraph 5 is rejected as not being material or relevant.
Adopted in Findings of Fact 9-12.
Adopted in Findings of Fact 13 and 14 but clarified.
Adopted in Finding of Fact 15.
Adopted in Findings of Fact 11 and 13 but clarified.
Adopted in Findings of Fact 11, 14 and 15 but clarified.
Adopted in Finding of Fact 14.
Adopted in Finding of Fact 18 but clarified.
13.-14. Adopted in Findings of Fact 19-23 but clarified.
Adopted in Finding of Fact 24 but clarified.
Adopted in Findings of Fact 25-27 but clarified.
Adopted in Finding of Fact 28 but clarified.
Adopted in Finding of Fact 29 but clarified.
Adopted in Findings of Fact 29 and 32 but clarified.
Rejected as not being material or relevant.
Adopted in Finding of Fact 36 but clarified.
Adopted in Finding of Fact 30.
Adopted in Finding of Fact 31.
Adopted in Finding of Fact 31 but clarified.
Adopted in Finding of Fact 34.
Adopted in Finding of Fact 31.
Adopted in Finding of Fact 39.
Adopted in Finding of Fact 34.
COPIES FURNISHED:
Joseph W. Lawrence, II, Esquire Post Office Box 589 Tallahassee, Florida 32302-0589
Larry D. Scott, Esquire Department of Transportation
Haydon Burns Building, Mail Station-58 Tallahassee, Florida 32399-0458
Kaye N. Henderson, Secretary Haydon Burns Building
605 Suwannee Street
Tallahassee, Florida 32399-0450
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION
WHITE CONSTRUCTION COMPANY, INC.,
Petitioner,
vs. CASE NO. 87-3811
FLORIDA DEPARTMENT OF TRANSPORTATION,
Respondent.
/
FINAL ORDER
The record in this proceeding and the Recommended Order of the Hearing Officer have been reviewed. Respondent, Florida Department of Transportation, has filed Exceptions to the Recommended Order. Exceptions numbered 1, 2 and 3 challenge various factual findings, however, because the hearing officer's findings are supported by competent substantial evidence such exceptions are rejected. Respondent's exception number four is addressed below in the Conclusions of Law.
FINDINGS OF FACT
The Findings of Fact in the Recommended Order are considered correct and are incorporated as a part of the Final Order. (The Recommended Order is attached hereto as Exhibit A) Additionally, on March &, 1988, the Department remanded this cause to the Division of Administrative Hearings for additional factual findings. (See Order Remanding Cause for Additional Factual Findings attached hereto as Exhibit B) On March 23, 1988, the Hearing Officer signed an order in response to the remand (attached as Exhibit C) in which he stated:
...the parties were not prohibited from presenting evidence and, in fact, did present evidence on pettioner, white Construction Company, Inc.'s (WHITE's) failure to timely return the executed contract, the penalty attendant thereto and, more
specifically, WHITE's reasons for its failure to timely return the executed contract to FOOT and; there was insufficient evidence to support a finding that WHITE's
failure to timely return the executed contract was due to factors beyond WHITE's control or through no fault of WHITE as indicated in Finding of Fact No. 40 wherein WHITE was found to be four (4) days delinquent in completing the contract as a result of its failure to timely return the executed contract to FDOT.
Accordingly, the Findings of Fact are supplemented with this finding. The remainder of the Order in Response is rejected as being both beyond the remand and an improper conclusion of law.
CONCLUSIONS OF LAW
The Conclusions of Law in the Recommended Order are accepted as correct with the exception of Conclusion number 6. The Hearing Officer correctly paraphrases part of Fla. Admin. Code Rule 14-23.001(3)(c)2 that once the Department establishes a prima facie case, the burden shifts to the contractor to demonstrate it has expended its best efforts in a diligent attempt to complete the job on time or in an expeditious manner, and was delayed through no fault of its own. The Hearing Officer's change from no fault to "not entirely the fault" is rejected. The rule also states: "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." (underlining added) The contractor must show both that it expended its best efforts and that it was delayed through no fault on his part. Petitioner failed to make both showings and thereby has not proven its defense. Petitioner failed to establish that the four day delay resulting: from its failure to timely return the contract was through no fault of its own. As the Hearing Officer found that Petitioner was four days late in completing the contract due to its delay in timely returning the contract, and petitioner failed to carry its burden in proving that such delay was through no fault of its own, the Petitioner is held to be delinquent by four days.
Having considered the Findings of Facts as supplemented and the Conclusions of Law as amended above, the Recommendation of the Hearing Officer is rejected, and instead it is, therefore
ORDERED that WHITE CONSTRUCTION COMPANY, INC., is determined to be delinquent on State Project Nos. 61080-3522 and 61080-3523, and it is
ORDERED that the Certificate of Qualification of WHITE CONSTRUCTION COMPANY, INC. is suspended beginning as of the date of this Order and continuing for a total of four days. During the period of suspension neither WHITE CONSTRUCTION COMPANY, INC. nor any of its affiliates shall bid on any DEPARTMENT OF TRANSPORTATION construction contracts regardless of the amount of the bid, nor be approved as a subcontractor, material supplier or consultant on any DEPARTMENT contract.
DONE AND ORDERED this 4th day of April, 1988.
KAYE N. HENDERSON, P.E.
Secretary
Department of Transportation Haydon Burns Building
605 Suwannee Street
Tallahassee, Florida 32399
COPIES FURNISHED:
WILLIAN R. CAVE, Hearing Officer Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32399-1550
JOSEPH W. LAWRENCE, ESQUIRE
Post Office Box 589
Tallahassee, Florida 32302-0589
JAMES ANDERSON., ESQUIRE
Department of Transportation Haydon Burns Building, MS 58 605 Suwannee Street
Tallahassee, Florida 32399-0458
Judicial review of agency final order may be pursued in accordance with Section 120.68, Florida Statutes, and Florida Rules of Appellate procedure 9.030(b)(I)(c) and 9.110. To initiate an appeal, a Notice of Appeal must be filed with the Department's Clerk of Agency Proceedings, Haydon Burns Building, 605 Suwannee Street, MS 58, Tallahassee, Florida 32399-0458, and with the appropriate District Court of Appeal within 30 days of
he filing of this Final Order with the Department's Clerk of Agency proceedings. The Notice of Appeal filed with the District Court of Appeal should be accompanied by the filing fee specified in Section 35.22(3), Florida Statutes.
================================================================= DISTRICT COURT OPINION
=================================================================
IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA
WHITE CONSTRUCTION NOT FINAL UNTIL TIME EXPIRES TO
COMPANY, INC., FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED.
Appellant,
CASE NO. 88-1101
vs. DOAH CASE NO. 87-3811
STATE OF FLORIDA, DEPARTMENT OF TRANSPORATION,
Appellee.
/ Opinion filed December 22, 1988.
An appeal from an order of the State of Florida, Department of Transportation.
Mary M. Piccard, Samantha Boge Cummings, and Joseph W. Lawrence, II, of Cummings, Lawrence & Vezina, P.A., Tallahassee, for appellant.
Maxine F. Ferguson and Thomas H. Bateman, III, Department of Transportation, Tallahassee, for appellee.
WIGGINTON, J.
Appellant appeals a final order of the Department of Transportation (Department) finding appellant delinquent in its completion of a construction contract and, pursuant to section 337.16(1), suspending its certificate of qualification to bid on Department projects for four days. We reverse.
In order to establish an absolute defense to the Department's delinquency charge when the project was not completed timely, appellant had the burden, pursuant to rule 14-23.001(3)(c)2, Florida Administrative Code, to show that it had expended its best efforts in a "diligent attempt to complete the job on time or in an expeditious manner, and was delayed through no fault on [its] part."
In his recommended order, the hearing officer found that the contract was completed on the 235th day and that various extensions resulted in the contract time being 231 days. However, from a reading of finding 23, finding 41, his recommendation, and his order on remand, it is clear that the hearing officer found that an additional and unquantifiable delay time (caused by appellant's loss of "orderly sequence" in its performance of the job due to delays which were not attributable to appellant) was sufficient to extend the contract time to at least 235 days for reasons which were not the fault of appellant.
Thereupon, he recommended a finding of no delinquency.
Contrary to the Department's argument on appeal, finding 23 did not factor in credit for that "orderly sequence" delay time. The Department accepted the hearing officer's findings of fact but rejected his recommendation based largely on the hearing officer's determination that a 5-day penalty imposed upon appellant prior to the initiation of the contract period due to appellant's delay in returning the executed contract had not been shown not to be appellant's fault. However, since the evidence supports and the Department accepted the hearing officer's findings that sufficient delays which were not the fault of appellant extended the contract time to at least 235 days and since the contract was completed on the 235th day, the contract was timely completed and no finding of delinquency is merited. Therefore, there was no basis upon which to suspend appellant's certificate of qualification. In doing 50, the Department improperly substituted its own judgment for that of the hearing officer contrary to section 120.57(1)(b)(10), Florida Statutes (1987). See Florida Department of Professional Regulation v. Baggett, 13 FLW 2654 (Fla. 1st DCA Dec. 8, 1988).
REVERSED and REMANDED for entry of an order accepting the hearing officer's recommendation.
| Issue Date | Proceedings |
|---|---|
| Dec. 21, 1987 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Apr. 04, 1988 | Agency Final Order | |
| Dec. 21, 1987 | Recommended Order | Where contractor shows basis for being 4 days late on contract it should not be shown to be delinquent. |
CONSTRUCTION INDUSTRY LICENSING BOARD vs. BRUCE ALLES, 87-003811 (1987)
CONSTRUCTION INDUSTRY LICENSING BOARD vs. MARVIN L. GILL, 87-003811 (1987)
DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION vs RICHARD MICHAEL GOLFMAN, 87-003811 (1987)
KENNETH C. TAYLOR vs. COASTAL MECHANICAL CONTRACTORS, INC., AND DEPARTMENT OF, 87-003811 (1987)
