STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
FAIRCHILD-FLORIDA ) CONSTRUCTION COMPANY, )
)
Petitioner, )
)
vs. ) CASE NO. 89-2004
)
DEPARTMENT OF )
TRANSPORTATION, )
)
Respondent, )
)
RECOMMENDED ORDER
Pursuant to notice, this Matter came on for hearing in Monticello, Florida, before the Division of Administrative Hearing by its duly designated Hearing Officer, Diane Cleavinger, on May 4, 1989.
APPEARANCES
The parties were represented as follows:
For Petitioner: W. Crit Smith
Smith and Thompson, P.A. 1530 Metropolitan Boulevard
Tallahassee, Florida 32308
For Respondent: Joseph P. Mawhinney
Senior Litigation Attorney Department Of Transportation 605 Suwanee Street, MS-58 Tallahassee, Florida 32399-0458
STATEMENT OF THE ISSUES
The issue at the hearing was whether Petitioner is delinquent in the progress of State Project Number 72160-3553 pursuant to Rule 14-23.001, Florida Administrative Code.
PRELIMINARY STATEMENT
Farchild-Florida Construction Company, a highway and bridge construction company, holds a certificate of qualification with the Department. By letter dated March 13, 1989, he Department notified Petitioner that it was delinquent in the progress of the work on State Project Number 72160-3553 (the "Project"), and that the Department intended to suspend Petitioner's certificate of qualification. Petitioner requested a formal hearing to contest the Department's notice of suspension.
At the hearing, Petitioner presented three witnesses and offered into evidence four exhibits. Respondent presented two witnesses and offered eleven exhibits into evidence. Additionally, Respondent submitted one composite exhibit after the hearing. The late-filed exhibit has been accepted into evidence as Department's exhibit 12.
Petitioner and Respondent filed their proposed recommended orders on May 24, 1989. The parties' proposed finding of fact have been considered and utilized in the preparation of this Recommended Order except where such proposals were not supported by the weight of the evidence or were immaterial, cummulative or subordinate. Specific rulings on the parties' proposals are contained in the Appendix to this Recommended Order.
FINDINGS OF FACT
On September 30, 1987, the Department received bids on Stat Project number 72160-3553. On November 16, 1987, the Department awarded the project to Petitioner.
The project consisted of the expansion and improvement of the Godby Lake Bridge on State Road 13 near Orange Park, Florida. In addition to widening the bridge, the project entailed curbs, sidewalks and relocating high tension power lines and poles from the west side of the bridge to the east side of the bridge.
Because of the power poles and the location of the bridge in the surrounding area the work had to be performed on the east side of the bridge first. The power poles and lines would be moved from the west side of the bridge to the east side of the bridge second. The work on the west side of the bridge would be completed third. Additionally, the work had to performed without shutting down the lanes to traffic. However, later in the project, the Department decided to waive the lane requirement in order to facilitate the remaining work on the project.
Under the contract, time was of the essence for the project.
Contract time extensions for the project were governed in the contract as follows:
The Department may grant an extension of contract time when a controlling time of work is delayed by factors determined to be beyond the Contractor's control which could not be reasonably anticipated
at the time bids for the project were received. Such extension of time may be allowed only for delays occurring during the contract time period
or authorized extensions of the contract time period...
A preliminary request for an extension of contract time shall be made in writing to the Engineer within ten calendar days after commencement of a delay to a controlling item of work or the Contractor shall waive any rights to an extension of the contract time for that delay. In the case of a continuing delay only one request is necessary. Each request for extension of time shall include a description
of the dates and cause of the delay, a complete description of the magnitude of the delay, and a list of the controlling items of work affected by the delay. Within 30 days after elimination of the delay, or receipt of a written request from the Engineer, the Contractor shall submit all documentation for the delay and a request of the exact number of days justified to be added to the contract time. If the Contractor claims additional compensation in addition to a time extension, the documentation must also include detailed cost analysis of the claimed extra compensation. Failure to deliver the required notice or documentation within the required period shall constitute an irrevocable waiver of an extension to the contract time for that delay. Failure by the Contractor to provide sufficient documentation, justification, records, etc., to support a request for additional contract time shall be a valid basis for denial of the request by the Department, either in part or entirely.
The plans and specifications for the project required the project to be completed within 355 days. The first chargeable day under the contract was January 21, 1988. The resulting completion date would, therefore, have been January 9, 1989. However two supplemental agreements provided additional contract days. The agreements extended the contract time period by 45 days. As a result, the project completion date was March 11, 1989. Up to the date of the hearing Petitioner did not indicate to Respondent that it considered the contract time period with extensions to be inadequate or unreasonable. At the hearing Petitioner indicated such a belief.
Additionally, the plans and specifications for the project clearly showed the Department's right of way for the bridge and the Department's construction easements for the bridge. Other than what was shown on the project plans and specifications, the plans and specifications did not provide for any additional right of way or construction easements.
The contract incorporated The 1986 Standard Specifications for Road and Bridge Construction. The specifications provide for access as follows:
Right of Way Furnished by Department. Except as otherwise stipulated in these
Specifications or as may be shown in the plans, all right of way necessary for the proper completion of the work will be furnished by the Department, without cost to the Contractor.
The present case clearly falls within the exception in the above language since the plans and specifications disclosed the limits of the right of way and construction easements being supplied by DOT. The burden was therefore on Petitioner to supply any additional easements it felt were necessary to properly complete the project.
Prior to bidding the project, Petitioner studied the bid blank, proposed plans and specifications for the project. Additionally, Petitioner viewed the project site and the surrounding area prior to submitting its bid.
Petitioner observed that the work area for the project would be "tight" due to the limited right of way and construction easements provided by DOT in the plans and specifications and due to the obstruction of private docks in close proximity to the bridge. However, Petitioner did not protest or otherwise inform DOT of its concerns regarding the work space prior to the award of the bid. Instead, Petitioner elected to gamble on being able to do the job as specified.
Likewise, Petitioner observed, prior to bidding the project that water access would be required. Petitioner had noticed that the property adjacent to the southeast corner of the project was for sale. Petitioner also knew that the owner of that property had previously granted DOT a construction easement over part of the property. Based on the above facts, Petitioner assumed that river access could be acquired over the adjacent property and included approximately
$15,000 in its bid for acquisition of such water access. Petitioner did not contact the landowner to see if such an arrangement was possible prior to submitting its bid or prior to the award of the bid Petitioner elected to gamble on such access being available. Once the project was awarded to Petitioner on November 16, 1988, Petitioner immediately began its attempts to obtain a water access.
After the award of the bid to Petitioner but prior to commencement of the contract, the Jacksonville Electrical Authority (JEA) erected its utility poles on the east side of the bridge. The work was performed out of order. The utility poles' placement was such that the poles partially blocked the right of way and construction easements supplied by DOT and made it impossible to drive pilings at the ends of the bridge.
Petitioner complained about the utility poles and their effect to Respondent at the preconstruction conference on December 9, 1987. The poles were eventually removed and the project was officially commenced on January 9, 1988, almost two months after the award of the bid. Petitioner was granted 14 additional contract days for the interference with the pile driving caused by the power poles' premature placement. However, Petitioner did not receive any additional days for the partial blockage of the right of way and construction easements since no delay was caused by that blockage. The partial blockage only interfered with light equipment being delivered to the job site. The poles did not interfere with the delivery of the crane and barge to the job site since the easement was too steep for the heavier equipment to traverse. A separate water access would still be required for the crane and barge to be delivered to the project site. Petitioner had not acquired such an access on January 9, 1988.
Petitioner did not begin work on the project until March 2, 1988, some two months after the project period had commenced. Petitioner did not move any heavy equipment onto the project site during this period. Instead, Petitioner continued to seek a water access to the project site which could handle the heavy equipment and barges Petitioner determined it would need to adequately perform the work on the project.
The search for access was necessitated by Petitioner's inability to contract for such access with the landowner whose land was immediately adjacent to the project site. The landowner demanded a price of $75,000 for Petitioner's use of its property. The price was grossly out of line with the usual charge for access in the area. DOT refuse to obtain any additional right of way or construction easements. 1/ Petitioner eventually contracted for access to the river with a landowner whose property was located approximately 500 feet east of the project site. The land was such that it required Petitioner to build a road
sturdy enough to carry its crane and barge sections. As soon as access was obtained and the road was complete, the equipment was floated down river to the bridge and the project work was immediately begun.
Other delays in the performance of the work were experienced by Petitioner due to the location of privately owned docks which extended into the waterway and boat traffic. A portion of one dock had to be removed by Petitioner in order to gain enough room for the barge next to the bridge. The total effect of these problems was to slow work on the project. However, Petitioner was aware of the private docks and the boat traffic from its earlier visit to the project site prior to submitting its bid. Likewise, Petitioner was aware of the limitations of the work space provided by DOT.
The evidence did not demonstrate that the work space was inadequate. The project work has been performed in the area provided by DOT. The space, however, is limited.
From March, 1988, through the date of the hearing problem associated with the limitations of the work space at the project site prevented work from being timely performed on the project site. However, no evidence was presented by Petitioner that it had ever made a request of DOT for an extension of time due to the limited work space. In fact, the evidence showed that in March and July, 1988, Petitioner believe and so represented to DOT that it could complete the project on time. Additionally, no evidence was presented as to the amount of time incurred by Petitioner attributable to the limited work space. Petitioner, therefore, is not entitled to an award of additional contract days for any delays caused by the limited work space provided by DOT.
As of May 4, 1989, the date of the formal hearing in this matter, the project had not been completed by Petitioner. The project completion date had passed on March 11, 1989. Therefore, Petitioner was delinquent under Rule 14- 23, Florida Administrative Code.
On March 21, 1989, the Department sent a Communication Terminal Message Sending Blank to Petitioner, indicating that a final notice of delinquency would be issued on the project.
On March 27, 1989, Petitioner received the Department's letter informing Petitioner that it was delinquent in the performance of the project work since the time for completion had passed and the project remained uncompleted.
By letter dated March 31, 1989, Petitioner advised Respondent that it did not feel that it was delinquent on the project since it had a request for a
120 day extension of time pending before Respondent. No evidence was submitted by Petitioner on the contents of that requested extension. However at the hearing the evidence demonstrated that the request was made based on the untimely move of the power poles 2/ and the initial lack of access to the project site. 3/ Petitioner further requested that if the extension should be denied then it wanted an administrative hearing on whether it was delinquent. Respondent tacitly denied Petitioner's requested 120 day extension and granted Petitioner's request for an administrative hearing. At the hearing Petitioner for the firs time associated the 120 day extension with its claim of inadequate work space at the project site.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.
Pursuant to Section 337.16(1), Florida Statutes, the Department 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 or when the allowed contract time has expired and the contract work is not complete."
Rule 14-23.001, Florida Administrative Code, 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 two circumstances exists:
3) Determination of Delinquent Status:
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 been entirely consumed, but the contractor's progress at any check period does not meet at least one of the following two tests:
The percentage of dollar value of completed work with respect to the total amount of the contract is within 10 percent points of the percentage of contract time elapsed.
The percentage of dollar value of completed work is within 10 percentage points of the dollar value which should have been performed according to the contractor's own progress schedule on file and approved by the Department.
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.
Rule 14-23.001(3), Florida Administrative Code.
The manner in which the Department declares a contractor to be delinquent is provided by Rule 14-23.001(3)(c), Florida Administrative Code:
Within 10 days of receiving a Notice of Delinquency, a contractor may submit a request for an extension of time to the Department of Transportation. The following issues may be considered by the Department
of Transportation in determining whether a contractor is entitled to additional contract time:
Whether the contract time allowed was sufficient and reasonable. However, the question of sufficiency of the contract time will only be considered by the department in situations where
the contractor prior to the expiration of 50 percent of the allowable contract time has notified the department that it considers the contract time to have been insufficient.
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 burden of proof to establish any defense allowable under this rule or the contract specifications.
Additionally, the special provisions of the contract govern the exact procedure for the contractor to seek an extension of time. The contract states in pertinent part:
The Department may grant an extension of contract time when a controlling time of work is delayed by factors determined to be beyond the Contractor's control which could not be reasonably anticipated
at the time bids for the project were received. Such extension of time may be allowed only for delays occurring during the contract time period
or authorized extensions of the contract time period...
A preliminary request for an extension of contract time shall be made in writing to the Engineer within ten calendar days after commencement of a delay to a controlling item of work or the Contractor shall waive any rights to an extension of the contract time for that delay. In the case of a continuing delay only one request is necessary. Each request for extension of time shall include a description
of the dates and cause of the delay, a complete description of the magnitude of the delay, and a list of the controlling items of work affected by
the delay. Within 30 days after elimination of the delay, or receipt of a written request from the Engineer, the Contractor shall submit all documentation for the delay and a request of the exact number of days justified to be added to the contract time. If the Contractor claims additional compensation in addition to a time extension, the documentation must also include detailed cost analysis of the claimed extra compensation. Failure to deliver the required notice or documentation within the required period shall constitute an ir- revocable waiver of an extension to the contract time for that delay. Failure by the Contractor to provide sufficient documentation, justification, records, etc., to support a request for additional Contract time shall be a valid basis for denial of the request by the Department, either in part or entirely.
In this case the evidence clearly demonstrated that the time for performance of the contract had expired on March 11, 1989. Petitioner, therefore, was delinquent under the contract pursuant to the definitions contained in Rule 14-23, Florida Administrative Code. Pursuant to that Rule Respondent mailed Petitioner a Notice of Delinquency by certified mail. Petitioner received that Notice on March 27, 1989. A timely request for an extension of time was made within 10 days from the date Petitioner received the delinquency notice. At the same time a timely request for hearing was made, should the extension be denied by Respondent. Respondent tacitly denied the requested extension of time by granting Petitioner's request for a formal hearing.
Petitioner has the burden to prove by a preponderance of the evidence that it had expended its best efforts on the contract in a diligent effort to complete the job on time or in an expeditious manner, but was delayed through no fault on its part in so completing the contract. White Construction Company Inc. v. Department of Transportation 535 So.2d 684 (Fla. 1st DCA 1988). The evidence did not demonstrate that Petitioner was diligent in the prosecution of its work under the contract. No evidence was presented to show that Petitioner had in fact added extra personnel or had utilized extra equipment on the job. Without such evidence it is impossible to establish Petitioner's diligence on the job or whether it had done all it reasonably could do to perform the contract within the timeframe Petitioner had contracted for.
Moreover, Petitioner's lack of fault for the delays in the performance of the contract was not established. Petitioner's failure to timely secure a water access separate from that provided by Respondent was entirely a consequence of its gamble that such an access was available. Petitioner was aware that a separate water access would be required for completion of the project. It included an amount for such an acquisition in its bid. However, Petitioner did not inquire into the availability of such an access at its estimated price until after the contract had been let. A reasonable contractor would have at least preliminarily inquired of any potential access owner regarding the availability of that property's use at a proposed figure. At that point Petitioner discovered that it was about to lose on its gamble in regard to access. Petitioner thought Respondent should be responsible for the provision of such a separate access to the project site. However, Petitioner had entered into a contract which, although ambiguous, placed the burden of acquiring a
water access to the project outside the access provided in the plans and specifications for the project on Petitioner. Respondent was under no contractual obligation to provide such an access.
Admittedly an ambiguous contract may be construed in accordance with a course of dealing as custom and usage between the parties may dictate. Southern Crane Rentals v. City of Gainesville 429 So.2d 771 (Fla. 1st DCA 1983). Usage is a uniform course of conduct in some particular business or calling even though that custom is maintained by only one person. 21 Am Jur. 2d Custom and Usages, Section 1. However, in a contractual setting such custom requires a course of action between the parties which demonstrates that the parties intended to have such actions or dealings incorporated within the meaning of a contract and govern the parties' respective obligations and duties in a given situation. In the instant case, Petitioner has failed to present sufficient facts in order to establish a course of dealing between the parties that DOT had the contractual obligation to supply access to the project site outside of what it represented it would supply in the plans and specifications. In fact, the evidence demonstrates that the contractual obligation to acquire a separate water access was foreseen and accepted by Petitioner when it included a sum for such acquisition in its bid on the project.
Finally, Petitioner presented no evidence that it was entitled to the
120 days it claimed for the delays it claimed were created by the lack of a separate water access. At best Petitioner established only that it would be entitled to a 61 day extension since only 61 days were covered by the actual contract period. The time preceding the commencement of the project cannot be included in an award of delay days under Rule 14-23, Florida Administrative Code. However, for the reasons stated above, Petitioner is not entitled to an award of 61 additional days.
Likewise, Petitioner failed to establish that it was not at fault on the project's timely completion in regards to the limited work space provided by DOT. The limited work space was foreseen by Petitioner from the time it reviewed the plans and specifications and bid the project. No evidence was presented by Petitioner to demonstrate its actions or plan of action in ameliorating the effects of the limited space conditions it had contracted under. In this regard, Petitioner has only received the benefit of its gamble that it could perform the work on the project under the space conditions represented. Respondent was entitled to rely on Petitioner's representation that it could so perform.
Moreover, Petitioner failed to produce any evidence which demonstrated the number of days of delay incurred as a result of the limited work space provided by Respondent. Likewise, Petitioner failed to demonstrate that the time established by Respondent under the contract was inadequate and unreasonable. Additionally, Petitioner failed to establish that it advised Respondent of the inadequate time prior to the expiration of fifty percent of the allotted time for the contract. Without such evidence Petitioner has failed to carry its burden of proof to establish a defense to a finding of delinquency.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued finding Petitioner delinquent on
the project and suspending Petitioner's Certificate of Qualification for the period defined in Rule 14-23, Florida Administrative Code.
DONE and ENTERED this 23rd day of June, 1989, in Tallahassee, Florida.
DIANE CLEAVINGER
Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 23rd day of June, 1989.
ENDNOTES
1/ The evidence disclosed only one instance where DOT did not initially provide adequate right of way or construction easements for completion of a DOT project. In that instance the Department voluntarily obtained additional easements in order to complete the project. The other evidence offered by Petitioner did not contain enough of the surrounding facts and circumstances of other projects to determine whether those other contracts between Petitioner and Respondent raised the same issue and were resolved in the similar manner in order to establish a course of dealing sufficiently concrete enough to impose a contractual obligation on DOT to supply access to a jobsite. One instance of such dealings on the part of DOT is insufficient to establish such a course of dealing or a course of performance.
2/ The problems caused by the power poles had already been rectified time-wise when DOT granted a 14 day extension. The evidence did not disclose any further delays caused by the power poles or that Petitioner had timely requested any further extensions due to delays created by the power poles.
3/ The 120 day extension requested by Petitioner was a combination of the time period beginning on November 16, 1987, the date of the bid award, and ending January 8, 1988, the last day prior to the actual commencement of the contract, and the time period beginning January 9, 1988, and ending March 23, 1989, the date Petitioner actually began work on the project.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-2004
The facts contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12 13, 15, 16 and 20 of Petitioner's Proposed Finding of Fact are adopted in substance, in so far as material.
The facts contained in paragraphs 17, 18, 19, 21, 22, and 23 of Petitioner's Proposed Findings of Facts are subordinate.
The facts contained in the first sentence of paragraph 14 of Petitioner's Proposed Findings of Facts were not shown by the evidence. The remainder of the paragraph is adopted.
The facts contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15 and 17 of Respondent's Proposed Finding of Fact are adopted in substance, in so far as material.
The facts contained in paragraph 16 of Respondent's Proposed Findings of Fact are subordinate.
COPIES FURNISHED:
W. Crit Smith
Smith and Thompson, P.A. 1530 Metropolitan Boulevard
Tallahassee, Florida 32308
Joseph P. Mawhinney
Senior Litigation Attorney Department Of Transportation 605 Suwanee Street, MS-58 Tallahassee, Florida 32399-0458
Kaye N. Henderson, Secretary Department of Transportation Haydon Burns Building
605 Suwanee Street
Tallahassee, Florida 32399-0450
Thomas H. Bateman, III General Counsel
Department of Transportation
562 Haydon Burns Building Tallahassee, Florida 32399-0450
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AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION
FAIRCHILD-FLORIDA CONSTRUCTION COMPANY,
Petitioner,
vs. DOAH CASE NO. 89-2004
DEPARTMENT OF TRANSPORTATION,
Respondent.
/
FINAL ORDER
The record of this proceeding and the Recommended Order of the Hearing Officer have been reviewed. Petitioner, FAIRCHILD-FLORIDA CONSTRUCTION COMPANY, has filed Exceptions to the Recommended Order which have been considered and are addressed below. The transcript of the hearing below will be referred to as "T:" followed by the appropriate page number.
FINDINGS OF FACT
The Findings of Fact in the Recommended Order are considered correct and are incorporated as part of this Final Order.
PETITIONER'S EXCEPTIONS TO THE FINDINGS OF FACT
Petitioner's exception I. A. to the Findings of Fact is rejected as not supported by the record. On pages 94 and 95 of the transcript, a series of questions was asked of Cecil Barrett, President of Fairchild-Florida, concerning access to the east shoe of the bridge. Mr. Barrett stated that $100,000.00 to
$15,000.00 was included in their bid to cover "that sort of thing". No mention is made of a storage area in this series of questions. Based upon Mr. Barrett's testimony, the Hearing Officer's finding that the $15,000.00 was to cover the acquisition of access to the bridge is supported by competent substantial evidence.
Petitioner's exception I. B. to the Finding of Fact is rejected because the finding of the Hearing Officer is supported by competent substantial evidence in the record. (T: 86, Petitioner's Exhibit 1) Additionally, the insignificance of the premature placement of the power poles is evident in Petitioner's admission that access from the east side of the bridge was impossible even without the premature placement of the power poles. (T: 41)
Petitioner's exception I. C. to the Findings of Fact is rejected since the Hearing Officer properly concluded that Petitioner's broad, generalized statements that the Department of Transportation always provided adequate access were not specific enough to establish that the Department had an obligation to provide access in instances where the plans and specifications clearly set forth the limits of the right-of-way and construction easements as stated in the Hearing Officer's Finding of Fact No. 7.
Petitioner's exceptions I. D., E. and F. are rejected since the Hearing Officer's findings are supported by the record.
CONCLUSIONS OF LAW
Petitioner's exception II. A. to the Conclusions of Law is well taken.
Florida Administrative Code Rule 14-23.011(2) states:
Rule Sections 14-23.011 through 14-23.014 are applicable to all construction contracts for which bids are received after the effective date of this rule section. Rule Section
14-23.001 shall remain in effect for all contracts for which bids are received prior to the effective date of this rule section.
Rule 14-23.011 became effective February 25, 1987. The bids on the subject contract were received on September 30, 1987. Therefore, Rules 14-23.011 through 14-23.014 are the appropriate rule sections to be applied in the instant cause. The Hearing Officer, however, applied Rule 14-23.001 in the instant cause. The delinquency alleged in this case was failure to complete the job in the allotted contract time. Both rule versions provide for a finding of delinquency if the project is not completed within the contract time. Because of the substantial competent evidence which supports the hearing officer's Findings of Fact, the Hearing Officer's error is harmless. Accordingly, to the extent applicable, the Hearing Officer's Conclusions of Law are adopted and included in the following substituted conclusions of Law. These substituted Conclusions of Law will also address Petitioner's exceptions.
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.
Pursuant to Section 337.16(1), Florida Statutes, the department 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 or when the allowed contract time has expired and the contract work ii not complete."
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 contract is considered delinquent on a previously awarded contract if one of three circumstances exists:
The allowed contract time for performing the work has expired and the contract work is not complete. The "allowed contract time" is the number of days set forth in the contract plus any time extension previously granted by the Department under the contract specifications; or
The specified time or date for performing a special milestone stage or the work as set forth in the special provisions of the contract has expired and the work for that milestone stage is not complete; or
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 nave been completed according to the contractor's approved working schedule for the project...
The manner in which the Department declares a contractor to be delinquent is provided by Florida Administrative Code Rule 14-23.013. Unsatisfactory progress on the construction contract is determined in accordance with the contract provisions.
In this case the evidence clearly demonstrated that the time for performance of the contract had expired on March 11, 1989. Petitioner, therefore, was delinquent under the contract pursuant to the definitions contained in Florida Administrative Code Rule 14-23. Pursuant to that Rule, Respondent mailed Petitioner a notice of Delinquency by certified mail. Petitioner received that Notice on March 27, 1989.
Unlike Rule 14-23.001, there are no provisions in Rules 14-023.11 through 14-23.014 which allow the Contractor to a file a request for an extension of time within 10 days from the date Petitioner received the delinquency notice. Rather, the special provisions of the contract govern the exact procedure for the contractor to seek an extension of time. The contract states in pertinent part:
The Department may grant an extension of contract time when a controlling time of work is delayed by factors determined to be beyond the Contractor's control which could not be reasonably anticipated at the time bids for the project were received. Such extension of time may be allowed only for delays occurring during the contract time period or authorized extensions of the contract time period...
A preliminary request for an extension of contract time shall be made in writing to the Engineer within ten calendar days after commencement of a delay to a controlling item of work or the Contractor shall waive any rights to an extension or the contract time for that delay. In the case of a continuing delay only one request is necessary. Each request for extension of time shall include a description of the dates and cause of the delay, a complete description of the magnitude of the delay, and a list of the controlling times of work affected by the delay. Within 30 days after elimination of the delay, or receipt of a written request from the Engineer, the Contractor shall submit all documentation for the delay and a request of the exact number of days justified to be added to the contract time. If the contractor claims additional compensation in addition to a time extension, the documentation must also include detailed cost analysis of the claimed extra compensation.
Failure to deliver the required notice or documentation within the required period shall constitute an irrevocable wavier of an extension to the contract time for that delay. Failure by the Contractor to provide sufficient documentation, justification, records, etc., to support a request for additional contract time shall be a valid basis for denial of the request by the Department, either in part or entirely.
Under the terms of the contract, Petitioner is not entitled to a time extension on the present contract for several reasons. First, the evidence is clear that matters complained of by Petitioner were "reasonably anticipated or foreseeable at the time of the bid." The available right-of-way and construction easement were clearly revealed within the project plans, and a pre-bid inspection of the proposed job site by Petitioner's representative did not disclose anything to suggest that any additional access would be provided by the Department.
Petitioner had the burden to supply any additional easements it felt were necessary to properly complete the project. Since Petitioner was aware of the situation prior to submitting a bid and failed to file a bid solicitation protest, Petitioner has waived this challenge to the specification. Capeletti Bros. v. Department of Transportation, 499 So.2d 855 (Fla. 1st DCA 1986).
As to petitioner's assertion that its delay was due to inadequate work space at the project site, again, such matters were "reasonably anticipated or foreseeable at the time of the bid." No evidence was presented by Petitioner to demonstrate its actions or plan of action in ameliorating the effects of the limited space conditions it had contracted under. In this regard, Petitioner has only received the benefit of its gamble that it could perform the work on the project under the space conditions represented. The Department was entitled to rely on Petitioner's representation that it could so perform.
Petitioner has the burden to prove by a preponderance of the evidence that it had expended its best efforts on the contract in a diligent effort to complete the job on time or in an expeditious manner, but was delayed through no fault on its part in so completing the contract. White Construction Company, Inc. v. Department of Transportation, 535 So.2d 684 (Fla. 1st DCA 1988). The evidence did not demonstrate that Petitioner was diligent in the prosecution of its work under the contract. No evidence was presented to show that Petitioner had in fact added extra personnel or had utilized extra equipment on the job. Without such evidence it is impossible to establish Petitioner's diligence on the job or whether it had done all it reasonably could do to perform the contract within the time frame Petitioner had contracted for.
Moreover, Petitioner's lack of fault for the delays in the performance of the contract was not established. Petitioner's failure to timely secure a water access separate from that provided by Respondent was entirely a consequence of its gamble that such an access was available. Petitioner was aware that a separate water access would be required for completion of the project. It included an amount for such an acquisition in its bid. However, Petitioner did not inquire into the availability of such an access at its estimated price until after the contract had been let. A reasonable contractor would have at least preliminarily inquired of any potential access owner regarding the availability of that property's use at a proposed figure. At that point Petitioner discovered that it was about to lose on its gamble in regard to access, Petitioner thought Respondent should be responsible for the provision of such a separate access to the project site. However, Petitioner had entered into a contract which placed the burden of acquiring a water access to the project outside the access provided in the plan and specification for the project on Petitioner. Respondent was under no contractual obligation to provide such an access.
In Conclusion of Law No. 8 in the Recommended Order, the Hearing Officer says the contract was ambiguous. This conclusion conflicts with Findings of Fact 7, 5, 9, and 10 which state that the right of way limits were
clearly shown in the plans and found Petitioner was well aware of the right of way work limitations. The Hearing Officer's Conclusion of Law No. 9 is included in its entirety, however, because it is an accurate statement of law and is supported by competent substantial evidence.
Admittedly an ambiguous contract may be construed in accordance with a course of dealing as custom and usage between the parties may dictate. Southern Crane Rental City of Gainesville, 429 So.2d 771 (Fla. 1st DCA 1983). Usage is a uniform course of conduct in some particular business or calling, even though that custom is maintained by only one person. 21 Am Jur. 2d Custom and Usages, Section 1. However, in a contractual setting such custom requires a course of action between the parties which demonstrates that the parties intended to have such actions or dealings incorporated within the meaning of a contract and govern the parties' respective obligations and duties in a given situation. In the instant case, Petitioner has failed to present sufficient facts in order to establish a course of dealing between the parties that DOT had the contractual obligation to supply access to the project site outside of what it represented it would supply 10 the plans and specifications. In fact, the evidence demonstrates the contractual obligation to acquire a separate water access was foreseen and accepted by Petitioner when it included a sum of such acquisition in its bid on the project.
Petitioner's request for an extension of time must also be denied because of the untimeliness of such request. As indicated above, contract provisions require that a detailed request for a specific number of days be submitted within 30 days after the cause or delay was eliminated. Petitioner seeks a 120 day extension for an access problem which was resolved in late March 1988, after 61 days of chargeable contract time. There is no evidence of an extension request within 30 days thereafter, and any such subsequent request is untimely and "irrevocably waived." Petitioner never indicated to the Department that the contract time was insufficient and no evidence was presented at the hearing below in support of such contention.
Finally, Petitioner presented no evidence that it was entitled to the
120 days it claimed for the delays it claimed were created by the lack of a separate water access. At best Petitioner established only that it would be entitled to a 61 day extension since only 61 days were covered by the actual contract period. The time preceding the commencement of the project cannot be included in an award of delay days under either the contract or Rule 14-23, Florida Administrative Code. However, for the reasons stated above, Petitioner is not entitled to an award of 61 additional days.
Likewise, Petitioner failed to establish that it was not at fault on the project's timely completion in regards to the limited work space provided by DOT. The limited work space was foreseen by Petitioner from the time it reviewed the plans and specifications and bid the project. No evidence was presented by Petitioner to demonstrate its actions or plan of action in ameliorating the effects of the limited space conditions it had contracted under. In this regard, Petitioner has only received the benefit of its gamble that it could perform the work on the project under the space conditions represented. Respondent was entitled to rely on Petitioner representation that it could so perform.
Moreover, Petitioner railed to produce any evidence which demonstrated the number of days of delay incurred as a result of the limited work space provided by Respondent. Likewise, Petitioner failed to demonstrate that the time established by Respondent under the contract was inadequate and
unreasonable. Additionally, Petitioner failed to establish that it advised Respondent of the inadequate time prior to the expiration of fifty percent of the allotted time for the contract. Without such evidence Petitioner has failed to carry its burden to proof to establish a defense to a finding of delinquency.
Petitioner's contention that, notwithstanding the project specifications, the Department was obligated to provide access and has done so in the past, will not avoid the expiration of contact time or the resulting delinquency. There is no authority to support the creation or realization of any obligation other than those provided in the contract and specifications. The subject contract is not ambiguous. The bid package and specifications are clear as to the extent of and obligation to provide right-of-way and easements for construction. Petitioner was aware or those provisions at the time of submitting its bid. While evidence of custom or past dealings may be admitted
to clear up that which is uncertain, it can not be used to contradict that which is agreed to in certain terms. Roe v. Henderson, 190 So. 618 (Fla. 1939).
PETITIONER'S EXCEPTIONS TO TIE CONCLUSIONS OF LAW
Petitioner's exception A to the Conclusions of Law is addressed above.
Petitioner's exception B to the Conclusions of Law is accepted to the extent that Petitioner's diligence in performing the contract was not at issue. Unlike Rule 14-23.011, Rules 14-23.011 through 14-23.014 do not provide that diligence on the part of the Contractor is a defense to a finding of delinquency. Petitioner's statement of the issue is rejected. The issue presented was whether petitioner was delinquent in the progress or State Project Number 72160-3553.
Petitioner's exception C to the Conclusions of Law is rejected as not supported by the facts.
Petitioner's exception D to the Conclusions of Law is contrary to the express language of the contract and is at best illogical. See Conclusions of Law numbers 6 and 10 above.
Petitioner's exceptions and F are without merit because they are contrary to the Findings of Fact set forth in the Recommended Order.
Accordingly, IT IS ORDERED, that Petitioner is delinquent on State Project Number 72160-3553 and Petitioner's Certificate of qualification is suspended for a period beginning on the date of this order and running continuously until the date of conditional or final acceptance of the project and continuing for 109 days which represents the number of days from April 16 1989 (the 10th day after receipt of the notice) until the date of this final order. During the period of suspension, Petitioner and its affiliates may not bid on any Department construction contract, regardless of dollar amount, nor be approved as a subcontractor on any Department contract.
DONE AND ORDERED this 3rd day of August, 1989, at Tallahassee, Florida.
KAYE H. HENDERSON, P. E.
Secretary
Department of Transportation 605 Suwannee Street
Tallahassee, Florida 32399
COPIES FURNISHED:
Diane Cleavinger, Hearing Officer Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1050
W. Crit Smith, Esquire Smith and Thompson, P.A. 1530 Metropolitan Boulevard Tallahassee, Florida 32308
Clay McGonagill, Esquire Department of Transportation 605 Suwannee Street
Tallahassee, Florida 32399-0458
J. Ted Barefield, Manager Contracts Administration Office Department of Transportation 605 Suwannee Street Tallahassee, Florida 32299
R. D. Buser, State Construction Engineer Department of Transportation
605 Suwannee Street
Tallahassee, Florida 32399
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)(1)(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 the 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.
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION
FAIRCHILD-FLORIDA CONSTRUCTION COMPANY,
Petitioner,
vs. DOAH CASE NO. 89-2004
DEPARTMENT OF TRANSPORTATION,
Respondent.
/
STIPULATED AMENDED FINAL ORDER
This matter came before the DEPARTMENT OF TRANSPORTATION pursuant to the attached Memorandum of Understanding entered into and dated August 28, 1989, between W. R. FAIRCHILD CONSTRUCTION COMPANY, LTD., FAIRCHILD-FLORIDA CONSTRUCTION COMPANY and STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION; and
pursuant thereto,
IT IS ORDERED that the Final Order entered August 3, 1989, is amended by this Stipulated amended Final Order to properly reflect the settlement reached by the parties.
IT IS ORDERED that Petitioner FAIRCHILD-FLORIDA CONSTRUCTION COMPANY is
hereby determined delinquent on State Project No. 72160-3553 and said Petitioner's Certificate of Qualification is hereby suspended from August 3, 1989, through September 3, 1989, pursuant to Rule 14-23, F.A.C. Further, IT IS ORDERED that no personnel, equipment, bonding capacity, or financial resources of Petitioner shall be used on any projects let during such period of suspension of Petitioner's Certificate of Qualification and which are awarded any affiliates of Petitioner.
Attached hereto as Exhibit "A" is a true and correct copy of the Memorandum of Understanding dated August 28, 1989, referred to and incorporated herein.
DONE AND ORDERED this 30th day of October, 1989, at Tallahassee, Leon County, Florida.
BEN G. WATTS, P.E.
Interim Secretary
Fla. Department of Transportation 605 Suwannee Street
Tallahassee, Florida 32399-0450
COPIES FURNISHED:
Diane Cleavinger, Hearing Officer Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
W. Crit Smith, Esquire Smith & Thompson, P.A.
1530 Metropolitan Boulevard
Tallahassee, Florida 32308
E. Clay McGonagill, Jr., Esquire Department of Transportation 605 Suwannee Street, MS-58 Tallahassee, Florida 32399-0450
J. Ted Barefield, Manager Contract Administration Office Department of Transportation 605 Suwannee Street, MS-55 Tallahassee, Florida 32399-0450
R. D. Buser, State Construction Engineer Department of Transportation
605 Suwannee Street, MS-31 Tallahassee, Florida 32399-0450
The following information is required by law to be included in all Final Orders:
Judicial review of agency final orders may be pursued in accordance with Section 120.68, Florida Statutes, and Florida Rules of Appellate Procedure 9.030(b)(1)(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, MS-58, 605 Suwannee Street, Tallahassee, Florida 32399-0450, and with the appropriate District Court of Appeals within thirty (30) days of the 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.
| Issue Date | Proceedings |
|---|---|
| Jun. 23, 1989 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Aug. 03, 1989 | Agency Final Order | |
| Jun. 23, 1989 | Recommended Order | Delinquency on road contract-bid speculations clearly delineated necessity for contractor to obtain R/W-delay no defense-contractor failed to required extension |
